SPEECHES  IN 
STIRRING  TIMES 


RICHARD  HENRY  DANA  JR. 


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RICHARD  HENRY  DANA,  JR 

(Author  of  "  Two  Years  Before  the  Mast ") 

SPEECHES  IN  STIRRING  TIMES 

AND 
LETTERS  TO  A  SON 


EDITED.  WITH  INTRODUCTORY  SKETCH  AND  NOTES 

BY 

RICHARD  H.  DANA  (3o) 


BOSTON  AND  NEW  YORK 

HOUGHTON  MIFFLIN  COMPANY 

(Cfte  fttoetfibe  press  Cambribge 

1910 


COPYRIGHT,    IQIO,   BY   RICHARD   H.   DANA 
ALL   RIGHTS   RESERVED 

Published  November  IQIO 


PREFATORY  NOTE 

THOSE  who  have  followed  Mr.  Dana  as  a  sailor  in 
his  "  Two  Years  Before  the  Mast "  may  have  a  special 
interest  in  following  him  as  a  lawyer,  publicist,  states 
man,  and  father  in  the  Speeches  and  Letters. 

In  the  Introductory  Sketch  and  the  Notes,  I  have 
freely  stated  what  I  thought,  without  reserve.  I  be 
lieve  the  facts  will  warrant  all  the  statements;  but  I 
have  not  held  back  from  saying  what  was  in  my 
mind  or  heart  for  fear  of  any  bias  I  may  have  in 
writing  of  a  much  beloved  father. 

Let  the  reader,  now  that  he  is  forewarned,  forearm 
himself  with  as  many  grains  of  chloride  of  sodium  as 
he  desires. 

R.  H.  D. 


CONTENTS 

I.  INTRODUCTORY  SKETCH 1 

II.  JOURNAL  ENTRIES  OF  CONVERSATIONS  WITH  "UNCLE 
EDMUND";  PITT,  Fox  AND  SHERIDAN  IN  PARLIAMENT. 
WASHINGTON'S  LAUGHTER 64 

III.  THE  BIBLE  IN  SCHOOLS 69 

IV.  SPEECH  ON  THE  JUDICIARY;  MASSACHUSETTS  CONSTITU 

TIONAL  CONVENTION  OF  1853 78 

V.   USURY  LAWS.  FEBRUARY  14,  1867 117 

VI.  BOSTON  FREE  SOIL  MEETING.   1848 145 

VII.  BUFFALO  FREE  SOIL  CONVENTION.   1848 149 

VIII.    THE  GREAT  GRAVITATION  MEETING;  A  PARODY  ON  THE 

FUGITIVE  SLAVE  LAW 164 

IX.  ARGUMENT  ON  BEHALF  OF  CHARLES  G.  DAVIS;  FUGITIVE 

SLAVE  RESCUE  CASE 178 

X.  AGAINST    THE     RENDITION     OF    ANTHONY    BURNS     TO 

SLAVERY 210 

XI.  THE  "GRASP  OF  WAR"  SPEECH.   JUNE  21,  1865;  BASIS 

FOR  RECONSTRUCTION 234 

XII.  THE  PRIZE  CAUSES.  ENEMY'S    TERRITORY    AND    ALIEN 

ENEMIES 273 

XIII.  RUFUS  CHOATE 288 

XIV.  THE  MONROE  DOCTRINE  .  295 


vi  CONTENTS 

XV.  ARGUMENT  BEFORE  THE  HALIFAX  FISHERY  COMMISSION  .  345 

XVI.    LETTERS  FROM  A  FATHER  TO  A  SON 429 

BIBLIOGRAPHY 503 

INDEX .  513 


ILLUSTRATIONS 


R.  H.  DANA,  JR.,  1815-1882  (Photogravure)      ....  Frontispieee 

From  a  daguerreotype  about  1849,  in  the  costume  generally  worn  in 
addressing  the  highest  courts,  presiding  at  political  meetings,  etc., 
at  that  period. 

WASHINGTON  ALLSTON,  1779-1843  (Photogravure) 8 

From  a  portrait  by  Frederick  Walker,  a  talented  American  artist  who 
died  young.  Painted  abroad,  probably  in  London,  between  1807 
and  1818.  Now  in  the  Boston  Museum  of  Fine  Arts.  According  to 
the  records  of  the  Museum,  it  is  a  copy  of  Sir  Thomas  Lawrence's 
picture  of  Washington  Allston,  painted  about  1807. 

R.  H.  DANA,  1787-1879  (Photogravure) 20 

From  a  portrait  by  William  M.  Hunt,  painted  at  Boston  about  1868  or 
1869.  Property  of  R.H.  Dana,  3d,  113  Brattle  Street,  Cambridge,  Mass. 

EDMUND  T.  DANA,  1779-1859  (Photogravure) 64 

From  a  portrait  by  Frederick  Walker,  painted  abroad,  probably  in 
London,  between  1801  and  1818.  Property  of  R.  H.  Dana,  3d,  113 
Brattle  Street,  Cambridge,  Mass. 

MAP  ILLUSTRATING  THE  DECISION  OF  THE  VENEZUELAN  BOUNDARY 
COMMISSION 336 

R.  H.  DANA,  JR.,  1815-1882  (Photogravure) 429 

From  a  portrait  by  G.  P.  A.  Healy;  a  replica  from  the  original  begun 
in  Boston,  1876,  and  finished  in  Paris.  Presented  by  Mr.  Healy  to 
Mrs.  Francis  O.  Lyman  (nee  R.  Charlotte  Dana)  in  1877,  and  now 
at  Mr.  F.  O.  Lyman's  house  in  Chicago,  Illinois. 


EICHAED  HENEY  DANA,  JE. 

1815-1882 
I 

INTRODUCTORY  SKETCH 

MR.  CHARLES  FRANCIS  ADAMS  in  1890  wrote  a  strik 
ing  biography  of  my  father,  and  for  this  our  family  is 
deeply  indebted  to  him.  It  was  then  planned  that  I 
should  publish,  as  a  supplement,  my  father's  speeches. 
They  had  a  far  more  permanent  value  than  most  liter 
ary  remains.  They  dealt  with  important  matters,  on 
broad,  permanent  principles.  Many  were  on  subjects 
still  before  the  public  to-day,  such  as  the  appoint 
ment  of  judges  for  life  as  contrasted  with  election  for 
terms  of  years,  the  inutility  of  usury  laws,  the  use  of 
the  Bible  in  the  public  schools,  and  the  true  principles 
of  the  Monroe  Doctrine.  Others  were  on  subjects  hav 
ing  a  lasting  historical  value,  such  as  the  arguments  in 
the  Fugitive-Slave  cases,  his  Lexington  Oration,  his 
addresses  on  Edward  Everett  and  Rufus  Choate,  the 
arguments  on  the  Prize  Causes,  and  the  speeches  just 
before  the  outbreak  of  the  Civil  War  and  on  the  begin 
ning  of  the  Reconstruction  Period.  There  were  also 
letters  from  my  father  to  me,  which  I  believe  are 
models  to  aid  fathers  generally  in  dealing  with  sons. 

The  project,  however,  of  publishing  a  selection  of 
these  was  delayed  some  sixteen  years  by  one  of  those 
curious  and  provoking  accidents  that  happen  in  the 
best  regulated  families.  Mr.  Adams  returned,  by  ex- 


2  RICHARD   HENRY  DANA,  JR. 

press,  addressed  to  my  mother's  house  in  Cambridge, 
the  letters,  journals,  speeches,  etc.,  mostly  contained 
in  a  large,  bright  green,  sheet-iron  box,  in  which  they 
had  been  sent  to  him.  When  I  came  to  look  for  them, 
they  were  nowhere  to  be  found.  None  of  my  mother's 
family  or  servants  had  seen  this  green  box  since  it  was 
sent  to  Mr.  Adams.  They  lit  a  candle,  swept  the  house 
and  searched  diligently,  but  found  it  not.  Besides  the 
loss  of  letters,  some  of  the  addresses  preserved  were 
only  in  the  form  of  newspaper  clippings,  with  correc 
tions  by  my  father,  impossible  to  be  replaced.  About 
two  years  ago,  being  in  the  L  attic  of  my  mother's 
house  in  search  of  some  papers,  a  bit  of  bright  green, 
in  the  very  eaves,  caught  my  eyes.  I  climbed  over 
trunks  and  discarded  furniture,  through  dust  and  cob 
webs,  and  there  was  the  missing  box !  Eagerly  I  dragged 
it  out  and  opened  the  cover,  there  to  find  all  intact. 
After  this,  who  does  not  believe  in  ghosts? 

With  regard  to  the  letters  from  a  father  to  his  son, 
the  question  arose,  should  I  publish  these  or  not? 
I  submitted  them,  with  an  introduction  showing  how 
my  father  had  dealt  with  me  at  critical  times  of  my 
youth,  to  several  friends.  The  advice  I  received  was 
most  contradictory.  Some  said,  the  cold  unsympa- 
thizing  world  would  ridicule  my  frankness,  deride 
my  youthful  faults,  and  at  best  consider  the  whole 
a  string  of  trifling  details,  not  worth  the  printing. 
Others  thought  they  would  be  a  great  help  to  perplexed 
fathers  in  the  difficult  task  of  training  their  boys, 
and  that  if  published,  there  would  be  many  grateful 
fathers  and  many  more  well-brought  up  sons.  For 
the  possible,  and  I  believe  probable,  good  that  these 
letters  might  do,  and  also  as  showing  another  side  of 
my  father's  character  not  brought  out  in  the  bio- 


INTRODUCTORY   SKETCH  3 

graphy  or  in  the  speeches,  I  have  decided  to  lay  aside 
personal  feelings,  run  the  risk  of  caustic  criticism,  and 
publish  these  letters  and  an  introductory  explanation, 
for  better  or  for  worse. 

As  to  Mr.  Dana's  dealing  with  permanent  principles, 
a  late  eminent  jurist,  who  had  known  him  as  a  student 
in  the  Harvard  Law  School,  said  that  Dana  thought 
out  his  moot-court  cases  on  fundamental  principles, 
and  sought  the  underlying  philosophy  of  jurispru 
dence.  My  father  told  me  that,  in  a  case  of  doubtful 
law,  he  first  made  himself  master  of  all  the  facts,  then 
worked  out  the  reasoning  that  should  apply,  and  last 
of  all  looked  up  the  precedents,  and  in  the  light  of 
the  principles  he  had  evolved,  could  best  weigh  and 
arrange  the  authorities.  By  pursuing  a  contrary 
course,  he  said,  and  going  first  to  the  cases  and  text 
books,  one  would  become  lost  in  a  thicket  of  under 
growth. 

By  this  mental  process,  he,  when  twenty-nine  years 
of  age,  worked  out  the  true  rule  of  law  regarding  the 
burden  of  proof  in  criminal  trials,  in  the  Peter  York 
case.1  Peter  York  was  charged  with  murder,  and  Mr. 
Dana  defended  him.  Mr.  Dana  urged  that  upon  the 
government  lay  the  burden  of  proving,  beyond  rea 
sonable  doubt,  the  malice  aforethought  as  well  as  the 
mere  killing.  The  language  employed  in  the  legal 
text-books  and  in  the  published  judicial  opinions  was 
opposed  to  Mr.  Dana's  contention,  and  the  majority 
of  the  Massachusetts  Supreme  Court  then  decided 
against  him;  but  Mr.  Dana's  view  has  prevailed,  as 
will  be  told  more  fully  farther  on  in  this  sketch,  and  is 
now  the  law  of  the  land. 

In  1854  the  law  of  collision  at  sea  as  between  a 

1  9  Metcalf,  89  (1845). 


4  RICHARD   HENRY  DANA,  JR. 

sailing  vessel  and  a  steamer  had  been  settled,  as  it 
was  supposed,  by  a  decision  of  the  celebrated  English 
Admiralty  judge,  Dr.  Lushington.  Mr.  Dana,  in  the 
case  of  the  Osprey,  before  Judge  Sprague,  took  the 
stand  that  Dr.  Lushington's  opinion  was  wrong.  He 
not  only  had  the  English  decision  overturned  and  won 
his  case  in  an  American  court,  but  his  rationale  is  now 
the  established  law  of  the  high  seas  for  all  nations. 

In  the  celebrated  Prize  Causes  during  the  Civil 
War,  there  seemed  to  be  a  dilemma.  Without  the 
power  to  stop  commerce  of  neutrals  with  the  Southern 
Confederacy,  the  war  would  be  indefinitely  protracted. 
The  usually  accepted  definitions  of  the  law  of  prize 
and  blockade,  neutrals,  and  belligerents,  riots,  war, 
and  insurrection,  seemed  to  make  it  impossible  to 
condemn  blockade-runners  as  prizes  without  acknow 
ledging  the  Confederacy  as  an  independent  nation. 
This  would  have  given  the  Confederacy  great  advan 
tages  in  dealing  with  foreign  powers,  to  say  nothing 
of  its  being  inconsistent  with  our  denial  of  a  consti 
tutional  right  of  secession.  Thus  arose  a  crisis  in  the 
Civil  War  as  real  as  the  battle  of  Gettysburg.  The 
Justices  of  the  Supreme  Court  of  the  United  States, 
though  feeling  that  the  power  of  blockade  ought  to  be 
justified,  were  unable  to  satisfy  themselves  on  what 
legal  grounds  it  could  be  sustained.  Mr.  Dana  argued 
for  the  power  of  blockade.  Judge  Grier,  who  wrote 
the  opinion  of  the  court,  unanimously  sustaining  Mr. 
Dana's  contentions,  afterwards  said  that  Mr.  Dana 
had  cleared  up  all  their  doubts.  In  the  note  to  the 
Amy  Warwick  and  "  Enemy 's  Territory  "  will  be  found 
what  was  said  of  this  argument  by  the  court  and  mem 
bers  of  the  bar  who  were  present,  and  an  explanation 
of  the  points  involved;  but  it  is  enough  for  the  present 


INTRODUCTORY  SKETCH  5 

to  say  that  Mr.  Dana  developed  "the  philosophy  of 
the  law  of  prize"  by  excavating  to  the  very  founda 
tion  of  that  law,  and  showing,  when  uncovered,  its 
real  simplicity  and  unity,  and  that  the  confusion  had 
existed  chiefly  in  the  definitions  under  which  the  true 
principles  had  lain  concealed. 

Mr.  Dana's  speech  in  the  Massachusetts  Legisla 
ture  on  the  usury  laws 1  is  another  illustration  of  his 
power  of  thinking  out  on  broad  principles.  He  was 
not  a  profound  student  of  political  economy,  though 
somewhat  of  a  reader  and  ponderer  on  it,  and  yet,  to 
use  Mr.  Adams's  words  in  the  Life,2  this  speech  is 
"one  of  the  most  admirable  presentations  of  the  argu 
ment  against  usury  laws  which  has  ever  been  made," 
and  "it  has  since  been  printed  repeatedly,  and  is  still 
one  of  the  documents  in  use  wherever  the  question 
...  is  under  discussion." 

At  the  close  of  the  Civil  War  arose  another  di 
lemma.  That  was  how  we  could  preserve  the  fruits 
of  the  war  without  acknowledging  the  right  of  seces 
sion.  Mr.  Dana,  in  his  speech  on  the  "Grasp  of  War," 
put  the  situation  on  what  seems  to  be  the  most  philo 
sophical  ground.3  In  that  speech  he  also  advocated 
an  educational  and  property  qualification  for  negro 
voters,  a  measure  which  it  is  now  generally  believed 
would  have  been  the  sane,  wise  course  to  have 
adopted.  It  pleased  neither  extreme  at  the  time, 
however,  and  it  was  the  extremists,  both  North  and 
South,  that  had  the  majorities  in  those  times  of 
excited  feeling. 

In  the  debates  in  the  Massachusetts  Constitutional 
Convention  in  1853,  he  went  "quite  into  the  meta- 

1  See  post,  p.  117.  2  Vol.  ii,  p.  337. 

3  See  notes  to  "Grasp  of  War"  speech. 


6  RICHARD  HENRY  DANA,  JR. 

physics  of  a  constitutional  government."  Mr.  Rufus 
Choate  said  of  Mr.  Dana's  speech  on  the  Judiciary, 
"It  is  philosophical,  affecting,  brilliant,  logical,  every 
thing." 

Besides  this  power  of  original  thought,  is  his  power 
of  logicaLand  orderly  arrangement,  with  a  sense  of  the 
picturesque  and  striking.  This  we  see  carried  out  not 
only  in  his  "Two  Years  Before  the  Mast,"  and  in  his 
journals  of  travel,  in  his  account  of  the  court-martial 
of  Commander  Mackenzie  for  hanging  Spencer  and 
others,  printed  in  the  Life,1  for  example,  but  even  in 
treating  of  technical  and  abstruse  subjects.  As  an  il 
lustration  of  the  latter  is  his  article  in  the  "American 
Law  Review"  of  1871  on  the  "History  of  Admiralty 
Jurisdiction  in  the  United  States."  2  There  the  reader 
is  led  on  to  see  the  steps,  one  by  one,  by  which  the  law 
was  developed  into  a  complete  and  consistent  whole, 
the  predicaments  into  which  some  of  its  own  early 
decisions  put  the  Supreme  Court,  and  the  ways  taken 
by  that  court  to  extricate  itself.  The  article  is  some 
forty  pages;  too  long  to  reprint  in  this  collection.  It 
shows  how  a  technical  subject  may  be  dressed  in 
simple,  every-day  language,  so  as  to  meet  the  ordinary 
reader  on  even  terms.  This  treatise  carries  one  along 
with  an  absorbing  interest,  like  that  created  by  a  well- 
constructed  detective  story. 

I,  personally,  shall  never  forget  his  clear  and  patient 
explanation  of  the  rig  of  sailing  vessels,  how  the  square 
sails  were  worked  in  tacking,  box-hauling,  and  the  like, 
or  the  methods  of  calculation  of  position  at  sea,  told 
while  walking  the  beach  or  piazza  at  Manchester. 
When  I  was  sailing  round  the  Horn  in  1879-80, 1  used 

1  Vol.  i,  pp.  47-70. 

2  American  Law  Review,  vol.  v,  No.  .4,  July,  1871,  pp.  581-621. 


INTRODUCTORY  SKETCH  7 

to  take  the  observations  for  latitude  and  longitude; 
and  I  well  remember,  for  example,  how,  with  the 
picture  in  mind  which  he  had  drawn  in  words  only,  I 
avoided  the  mistake  which  the  second  mate  made 
when  passing  south  of  the  sun  and  reversing  condi 
tions. 

In  addition  to  the  natural  powers  of  mind  and 
trained  habits  of  thought,  quick  observation,  and  or 
derly  arrangement,  Dana's  writings  are  enriched  by  a 
wealth  of  historical,  literary,  classical,  and  philosophi 
cal  illustration,  used,  like  gestures,  with  discretion. 
His  rule  was  to  use  neither  gestures,  quotations,  nor 
allusions,  unless  helpful  to  the  presentation  of  his  sub 
ject  or  required  by  the  occasion;  never  for  show. 

Mr.  Dana  was  born  and  lived  in  a  veritable  garden 
of  literature,  where  there  were  great  trees,  hardy  per 
ennials,  and  many  sweet  annuals,  whose  memory 
hardly  lasts  beyond  the  seasons  they  blessed,  but 
whose  influence  with  him  was  none  the  less  potent. 

To  begin  with,  he  was  born  in  one  of  the  "literary 
families,"  as  Colonel  Thomas  Wentworth  Higginson 
calls  them.  His  father,  Richard  Jlenry  Dana,  Senior, 
was  a  poet  and  essayist.  He  was  one  of  the  founders 
of  the  "North  American  Review,"  the  first  literary 
magazine  in  America  to  last.  He  lectured  on  Shake 
speare,  maintaining,  against  many  authorities  of  the 
time,  that  Shakespeare  was  the  greatest  poet  in  the 
English  language.  Literary  and  philosophical  discus 
sion  and  criticism  formed  the  staple  family  talk,  as 
society  gossip  does  in  some  circles,  and  reading  aloud 
was  the  most  common  entertainment.  The  elder 
Dana  kept  up  his  varied,  voluminous,  and  critical 
study  until  the  last  week  of  his  long  life  of  over  ninety- 
one  years,  and  my  father,  even  after  his  marriage  and 


8  RICHARD   HENRY  DANA,  JR. 

in  the  busiest  parts  of  his  life,  was  a  frequent  caller  at 
"Chestnut  Street"  or  visitor  at  the  "Shore,"  as  he 
named  the  homes  of  my  grandfather  in  Boston  and  at 
Manches  ter-by-the-Sea . 

The  elder  Edmund  T.  Dana,  his  father's  brother, 
was  a  delightful  talker,  humorist,  traveler,  and  reader, 
whose  literary  judgment  was  much  sought  after.  He 
greatly  resembled,  so  Mr.  Charles  Eliot  Norton  said, 
our  delightful  John  Holmes.  This  Edmund  T.  Dana, 
Senior,  had  listened  to  many  great  Parliamentary 
speeches  and  debates  of  his  generation.  He  had  talked 
with  authors  and  painters  in  the  England  of  his  day, 
and  is  said  to  have  had  remarkable  powers  of  imita 
tion  and  narration.1 

Mr.  Dana's  aunt,  Miss  Martha  Dana,  had,  in  1830, 
when  Dana  was  fifteen  years  old,  married  Washington 
Allston,  whose  prose  and  verse  were  as  remarkable  as 
his  painting.  Allston  was  a  personal  friend  of  Samuel 
Taylor  Coleridge,  Wordsworth,  Washington  Irving, 
Verplanck,  Sir  Thomas  Lawrence,  Collins,  Wrest, 
Leslie,  Hazlitt,  Charles  Lamb,  Turner,  Thorwaldsen 
and  other  2  painters  and  authors  of,  or  frequenting, 

1  Some  journal  entries  of  conversations  with  this  "Uncle  Edmund" 
are  appended  to  this  sketch. 

2  It  may  be  suggested  that  I  should  have  included  Keats,  Shelley,  and 
Byron.  Sweetser,  in  his  Washington  Allston,  quotes  Vanderlyn  as  telling 
how  Allston  frequented  the  famous  Cafe  Greco  in  Rome  with  Turner 
and  Fenimore  Cooper  in  1805,  and  adds,  "There,  too,  were  to  be  seen 
Shelley,  Keats,  and  Byron."  This  is  a  mistake  if  it  means  they  were  to 
be  seen  there  in  1805,  the  only  year  Allston  was  in  Rome,  for  Shelley  was 
born  in  1792  and  would  have  been  but  thirteen  years  old,  and  did  not 
leave  England  for  Italy  until  1818;  Keats  was  born  in  1795,  and  was  but 
ten  years  old  in  1805,  and  set  sail  for  Italy  in  1820;  and  Byron's  first 
trip  to  Italy  was  in  1809.  Allston  may  have  met  them  in  England  before 
he  returned  to  America  in  1818,  but  of  this  we  have  no  record. 


INTRODUCTORY  SKETCH  9 

the  old  world.  He  sent  and  received  letters  from 
some  of  them  while  he  resided  in  Cambridge.  All  this 
made  such  men  seem  real,  while  Allston's  charm,  so 
fascinating  to  his  associates,  made  a  young  man  like 
his  nephew,  Dana,  fall  in  love  with  the  humanities. 
"All  my  childish  notions  of  Europe,"  writes  Mr. 
Dana,  on  the  death  of  his  Uncle  Edmund  in  1859, 
"were  derived  from  him  and  Mr.  Allston  and  my 
Uncle  Francis.  From  them  I  heard  of  Pitt  and  Fox, 
of  Nelson,  of  Mrs.  Siddons,  John  Philip  Kemble, 
Coleridge  and  Wordsworth  and  the  painters.  At  his 
room,  on  the  green,  in  the  old  Trowbridge  home,  Ned 
and  I  used  to  spend  evenings  listening  to  him  and 
Allston  and  such  chance  visitors  as  gathered  there." 

Miss  Charlotte  Dana,  my  father's  elder  sister,  was 
a  woman  of  remarkable  literary  and  philosophical 
mind,  with  rare  musical  taste  and  discrimination;  and 
his  brother,  Edmund,  first  scholar  of  his  class  at  Bur 
lington  College,  Vermont,  a  student  for  many  years  at 
Heidelberg  University  in  Germany,  where  he  got  a 
doctor's  degree  "  summa  cum  laude,"  and  an  accom 
plished  gentleman,  was  one  who  made  a  deep  impres 
sion  on  all  who  met  him,  for  his  varied  acquirements 
and  keen  powers  of  mind. 

In  that  family  life  there  was  also  an  abundance  of 
wit,  laughter,  fun,  humor,  to  offset  the  more  serious 
side  of  literature  and  art. 

Such  was  the  immediate  family  group;  but  beyond 
was  the  greater  part  of  this  remarkable  literary  garden 
of  which  I  have  spoken.  To  any  one  caring  enough  in 
literature  to  take  this  book  in  hand,  and  wanting  to 
know  the  kind  of  flora  that  flourished  there,  it  suffices 
merely  to  name  as  friends  or  acquaintances  of  Mr. 
Dana,  whom  he  met  often  in  Cambridge,  or  Boston 


10  RICHARD  HENRY  DANA,  JR. 

and  the  other  suburbs  of  Cambridge,  Longfellow  and 
his  wife,  Mr.  and  Mrs.  James  Russell  Lowell,  Emer 
son,  Oliver  Wendell  Holmes,  John  Holmes,  the  Nor- 
tons,  Wheatons,  Willards,  Greenoughs,  Charles  and 
George  Sumner,  Bancroft,  Prescott,  Sparks,  Palfrey, 
Ticknor,  the  Quincys,  the  Adamses,  Everett,  William 
Ellery  Channing,  Professor  E.  T.  Channing,  Harri 
son  Gray  Otis,  Thomas  W.  Higginson,  the  "young 
Professors  Child,  Lane,  Cooke,  and  Gould,"  Agassiz, 
Rufus  Choate,  Dr.  S.  G.  and  Mrs.  Julia  WTard  Howe, 
Mr.  and  Mrs.  James  T.  Fields,  Leonard  Woods,  Wil 
liam  M.  Evarts,  Senator  and  Judge  Hoar,  Hillard, 
Henry  James,  Senior,  Motley,  and  riot  a  few  others. 

Mr.  Dana  not  only  lived  in  such  a  garden,  with  its 
inevitable  influence  on  any  one  with  literary  instincts 
and  aspirations,  but  he  assiduously  cultivated  his 
own  plot  in  that  garden.  When  going  to  boarding- 
school,  not  being  quite  nine  years  of  age,  his  father 
gave  him  the  parting  words,  "  Put^^youzJaones  to  it, 
my  bpy-"  This  instruction  he  seems  to  have  carried 
out  in  his  school-work,  though  he  says  he  indulged  in 
no  little  day-dreaming  during  his  one  year  in  this 
particular  boarding-school,  chiefly  because  he  had 
been  so  well  prepared,  and  there  was  so  little  work  to 
occupy  the  school-hours. 

He  seems  to  have  preferred  those  teachers  who 
enforced  "system  and  discipline"  as  more  likely  to 
"insure  regular  and  vigorous  study,"  and  as  on  the 
whole  more  valuable  "though  not  so  popular  with  us 
nor  perhaps  so  elevated  in  the  habits  of  thought  as 
Mr.  Ralph  Waldo  Emerson,"  who  was  his  teacher  at 
the  Cambridge  school  for  a  short  time.  While  this 
shows  Dana's  estimation,  even  when  a  boy,  of  hard 
work,  none  the  less  did  Emerson's  "elevated  habits 


INTRODUCTORY  SKETCH  1 1 

of  thought"  undoubtedly  have  their  influence  for 
good. 

While  a  school-boy  of  scarcely  ten,  occurred  the 
fiftieth  anniversary  of  Lexington  and  Concord  and 
Bunker  Hill,  with  the  great  speeches  of  Webster  and 
Everett,  with  Lafayette's  triumphal  progress  through 
the  country,  and  the  popular  enthusiasm  aroused.  . 
These  things,  he  wrote,  "made jus  all  ardent  patriots," 
and  led  him  to  read  Thacher's  Journal,  Heath's 
"Memoirs  of  the  Revolution,"  and  "short  lives  of 
Washington  and  Lafayette." 

I  must  not  close  his  boyhood  work  without  noting 
what  he  says  of  the  day-school  which  he  and  so  many 
other  dwellers  in  the  literary  garden  attended. 

"There  is  one  feature  of  the  school  at  Cambridge 
which  I  always  recur  to  with  great  pleasure.  This 
is  the  uncommon  gentlemanly  spirit  that  prevailed 
among  the  scholars.  We  were  all,  with  never  more 
than  one  or  two  exceptions,  the  sons  of  educated  men, 
lived  at  our  own  homes,  and  being  so  much  connected 
with  the  University,  saw  a  good  deal  of  literary  society 
and  became  familiar  with  much  higher  style  of  conver 
sation  and  range  of  topics  than  boys  usually  are.  The 
profanity,  vulgar  and  indecent  language  so  common 
among  school-boys  was  almost  unknown  among  us 
...  a  high  sense  of  honor  and  a  certain  pride  of  per 
sonal  character  was  the  esprit  de  corps.  .  .  .  Topics  of 
conversation  also  among  the  boys  were  much  more 
select  and  improving  than  I  ever  knew  at  any  other 
school,  and  even  more  so  than  with  most  college 
students." 

Who  can  tell  how  much  this  "esprit  de  corps"  and 
these  "topics  of  conversation"  in  the  Cambridge 
school,  for  which  the  boys  themselves  were  respon- 


12  RICHARD  HENRY  DANA,  JR. 

sible,  had  to  do  with  the  wonderful  growths  that 
followed  in  the  literary  garden !  If  these  are  some  of 
the  causes,  then  let  us  exclaim,  in  a  more  primitive 
sense  perhaps  than  the  words  were  used  by  Juvenal: 
"Maxima  debetur  pueris  reverentia."  Perhaps  it  was 
his  experience  as  instructor  of  these  very  youths  that 
suggested  to  Emerson  his  oft-quoted  remark,  "Send 
your  son  to  school  and  the  boys  will  teach  him." 

Mr.  Dana  was  brought  up,  also,  to  be  manly  and 
self-reliant  as  a  boy.  His  father,  though  naturally 
of  a  foreboding  cast  of  mind,  concealed  his  fears  from 
his  son  and  encouraged  him  to  run  all  the  risks,  or 
dinary  and  extraordinary,  of  boys'  sports.  Let  me 
give  an  illustration.  Young  Dana  and  his  boy-friends 
were  in  the  habit  of  swimming  in  the  Charles  River, 
with  its  treacherous  bottom  and  sweeping  tides.  One 
of  his  companions  was  there  drowned.  A  few  days 
after,  he  asked  his  father  if  he  should  go  in  swimming 
as  usual.  His  father  said,  "Why  not?"  Off  went 
Richard;  but  his  father,  in  his  anxiety,  walked  the 
floor  of  his  study  back  and  forth  until  his  son  returned, 
though  of  this  his  son  never  heard  a  word  until  long 
after  he  had  grown  to  manhood. 

In  college  Dana  immediately  took  high  rank  in  his 
class.  He  returned  from  his  two  years  before  the  mast 
"hungry  for  literature,"  and  from  then  on,  he  not 
only  stood  first,  but  had  "the  highest  marks  that  were 
given  out  in  every  branch  of  study."  He  took  the 
Bowdoin  prize  for  English  prose  composition  and  first 
Boylston  prize  in  elocution. 

Of  his  early  college  days,  before  going  to  sea,  he 
says  in  his  journal,  written  ten  years  later:  "Having 
very  strong  eyes,  I  usually  learned  my  morning  lesson 
by  candle-light  before  breakfast,  and  gave  my  even- 


INTRODUCTORY   SKETCH  13 

ings  to  general  reading,  frequently  sitting  up  until 
past  midnight.  Croker's  edition  of  Boswell's  'Life  of 
Johnson'  and  Carlyle's  'Life  of  Schiller'  I  remember 
as  among  the  books  I  dispatched  during  the  winter." 

In  the  vacation  of  his  sophomore  year,  he  read, 
among  other  books,  Johnson's  "Lives  of  the  Poets." 
In  the  Law  School,  as  he  put  it,  "We  were  placed  in 
a  library  under  learned,  honorable,  and  gentlemanly 
instructors  [the  chief  of  whom  were  Judge  Story  and 
Professor  Greenleaf],  and  invited  to  pursue  the  study 
of  jurisprudence  as  a  system  of  philosophy,"  -  and 
in  this  pursuit  he  took  a  high  stand.  There  was  no 
rank  list  in  the  Law  School  of  those  days,  but  he  is 
said  to  have  held  his  own  among  such  stimulating 
opponents  as  his  classmates,  George  Bemis,  William 
Davis  of  Plymouth,  Judge  Hoar,  and  William  M. 
Evarts. 

The  following  anecdote,  taken  from  Mr.  Dana's 
journal,  shows  Judge  Story's  estimate  of  how  pro 
fitable  the  study  in  the  Law  School  had  been  to  his 
pupil :  — 

"In  the  autumn  of  1839,  I  made  an  argument  be 
fore  Judge  Story  upon  the  subject  of  the  effect  of 
a  judgment  between  creditors  and  accommodation 
indorsers,  which  he  requested  me  to  write  out  for  him 
in  full  that  he  might  take  it  to  Washington  with  him 
in  the  winter  and  show  it  to  the  judges  of  the  Supreme 
Court  as  a  specimen  of  what  could  be  done  upon  a  two 
years'  education  at  a  law  school.  I  did  so  and  upon 
his  return  he  brought  me  very  gratifying  compliments 
from  the  judges  and  especially  from  Judge  McLean, 
in  whose  circuit  the  question  had  arisen,  but  had  not 
been  argued." 

While  in  the  Law  School,  in  furtherance  of  his  edu- 


,ei 

k 


14  RICHARD  HENRY  DANA,  JR. 

cation,  and  to  aid  him  financially  as  well,  he  taught 
English  and  elocution  at  Harvard  as  assistant  to 
Professor  Edward  Tyrrel  Channing.  Under  the  influ 
ence  of  his  father  and  Professor  Channing,  and  also, 

oubtless,  from  choice,  his  style  was  simple,  and  he 
preferred  the  short,  Anglo-Saxon  words.  A  commit 
tee  of  the  American  oculists,  recently  preparing  tests 
for  eyes,  sought  out  passages  of  shortest  words  and 
clearest  style,  and  finding  these  in  "Two  Years  Before 
the  Mast,"  wrote  for  permission  to  use  extracts.  This 
was  granted,  and  now,  at  the  oculists'  and  opticians' 
throughout  the  United  States,  one  finds,  put  before 
him  in  neat  frames,  in  type  of  varied  size,  these  ex 
tracts  from  Dana's  sea  narrative.1  During  the  last 
year  in  college  and  two  and  a  half  years  in  the  Law 
School,  he  made  a  point  of  spending  "one  evening 
a  week"  with  Washington  Allston.  So  much  for  his 
early  preparation  of  his  own  plot  in  this  remarkable 
garden. 

But  Dana  did  not  stop  with  the  spring  digging, 
fertilizing  and  seeding,  as  so  many  do,  and  then  let 
matters  alone;  but  all  through  his  career  he  kept  up 
his  literary  gardening.  In  the  Life  Mr.  Adams  gives 
a  picture  of  the  killing  work  Mr.  Dana  did,  and  the 
want  of  variety,  entertainment,  and  diversion,  that  is 
as  pathetic  as  it  is  true.  Mr.  Adams  ends  a  sketch  of 
a  day  as  follows :  — 

"By  and  by,  when  the  dreary  evening  meal  —  in 
no  way  dreary  to  him — was  disposed  of,  and  the  even 
ing  paper  read  and  the  talk  with  the  children  over, 

1  Since  the  publication  of  the  Biography,  Two  Years  Before  the  Mast 
has  been  included  in  a  collection  of  the  World's  Greatest  Books  (1901), 
and  also  in  the  Harvard  Classics,  edited  by  ex-President  Charles  W.  Eliot 
(1910). 


INTRODUCTORY  SKETCH    .  15 

Dana  would  disappear  into  his  library,  the  green  bag 
would  be  emptied  of  its  papers,  and  the  lawyer  would 
be  immersed  in  a  study  of  his  case  until  bedtime." 

As  to  the  detail  of  the  evening  paper,  my  father 
told  me  he  never  read  an  evening  paper  except  dur 
ing  some  critical  periods  of  the  Civil  War,  urging 
on  me  that  one  paper  a  day  was  enough  in  the  economy 
of  time.  There  is,  however,  an  omission  of  real  im 
portance  from  this  picture  of  the  evening  habits, 
and  that  is  the  hour,  or  hour  and  a  half,  before  bed, 
when  Mr.  Dana  put  his  law  papers  back  into  the 
green  bag,  changed  from  lawyer  to  student,  and  took 
up  general  reading.  He  explained  to  me  how  much 
could  be  accomplished  by  this  one  or  two  hours  iifov^ 
twenty-four,  if  persisted  in.  In  this  way,  he  told  mef 
taking  notes  and  reviewing  the  previous  night's 
portion,  he  read  the  whole  of  Grote's  Greece,  twelve 
volumes,  Mitford's  Greece,  Gibbon's  Rome,  Hal- 
lam's  Middle  Ages  and  Constitutional  History, 
Hume's  England  (unabridged),  and,  as  he  said, 
"to  get  the  Catholic  view -point,"  Lingard's  History 
of  England,  then  Macaulay's  England,  Burke's 
speeches  and  essays,  much  of  which  he  read  and  re 
read,  learning  passages  by  heart,  and  Campbell's 
"Lives  of  the  Chief  Justices."  He  read  many  of 
Erskine's  and  Webster's  speeches  and  also  some  Euro 
pean  history  from  the  Middle  Ages  on,  and  I  do  not 
remember  what  else.  He  told  me  he  usually  read  a 
little  Latin,  and  he  took  up  his  French  again  at  one 
period  in  these  evening  hours,  both  reading  and 
writing,  supplementing  this  at  the  time  with  French 
conversation  at  the  end  of  an  afternoon  or  two  a 
week.  In  1852  he  writes  in  his  journal  of  the  plan  of 
cultivation  as  he  was  then  carrying  it  on,  as  follows : 


16  RICHARD  HENRY  DANA,  JR. 

"  My  rule  is  to  write  a  little  Latin  every  Tuesday, 
Thursday,  and  Saturday  evening,  and  to  read  a  little 
French  every  other  evening,  and  then  to  read  in  my 
course  of  History  or  Law." 

On  Sundays,  after  the  midday  meal  of  cold  roast 
beef,  which,  under  the  ameliorating  rules  of  Sunday 
observance,  later  became  hot  roast  beef,  he  retired 
into  his  library  for  some  turns  of  the  clock's  long 
hand,  before  the  children's  hour  with  its  questioning 
and  home-teaching;  and  there,  excepting  for  the 
afternoon  church  in  the  earlier  days,  and  a  walk  in 
the  fresh  air,  besides  his  study  of  the  Bible  and  com 
mentaries  on  it,  the  New  Testament  in  Greek,  and 
purely  religious  works,  he  re-read  his  Milton's  poems, 
also  "finished  Milton's  prose,"  and  read,  for  ex 
ample,  Coleridge's  philosophy  and  poetry,  Words 
worth,  Southey,  and  other  "Lake"  poets,  Spenser's 
"Faerie  Queene,"  Bishop  Berkeley,  Adam  Smith, 
Jeremy  Taylor,  Confessions  of  St.  Augustine,  "Prac 
tical  View"  and  speeches  of  William  Wilberforce, 
and  speeches  of  his  son,  the  Bishop,  speeches  of 
Gladstone,  the  Bishop  of  Oxford  and  other  great  par 
liamentarians,  Life  of  Henry  Martyn,  "Double  Wit 
ness  for  the  Church,"  Newman,  Pusey,  Bacon's  "No- 
vum  Organum,"  Tennyson,  learning  some  whole 
poems  by  heart  and  passages  of  others,  which  he  some 
times  repeated  to  us  children,  to  our  great  delight, 
at  home  or  in  the  walks  in  the  woods  or  on  the  smooth 
sand  beach  at  "beloved"  Manchester. 

It  is  true,  as  told  by  Mr.  Adams  in  the  Life,  that 
in  1856  he  had  not  read,  nor  did  he  at  the  time  care 
to  read,  "Henry  Esmond."  He  had  read  "Vanity 
Fair,"  and  from  that  judged  Thackeray  to  be  a  cynic. 
He  had  seen  a  bad  effect  of  "Vanity  Fair"  on  some 


INTRODUCTORY  SKETCH  17 

young  people.  He  advised  me  not  to  read  it  while  in 
school.  Later  he  read  "Pendennis,"  and  was  so 
fascinated  that  he  read  it  right  over  again  to  his  wife; 
and  later  "The  Newcomes"  and  the  "Paris  Sketch- 
Book";  and  ultimately  he  changed  his  view  of 
Thackeray. 

In  going  over  his  journals  and  a  few  of  his  letters, 
I  find  he  speaks  of  reading,  besides  some  of  the  above, 
Romilly's  Memoirs,1  Ruskin,  "Guesses  at  Truth," 
by  Augustus  and  Charles  Hare,  "School-Days  at 
Rugby,"  "The  Heir  of  Redclyffe,"  Cowper's  Odys 
sey,  "Friends  in  Council,"  "Broad  Stone  of  Hon 
our,"  Adams's  "Social  Compact,"  "Don  Quixote," 
much  of  Dickens,  Bulwer,  George  Eliot,  Cooper, 
Byron,  Gray,  Pope,  Burns,  Cowper,  Scott,  both 
poems  and  prose,  Keble,  the  "Judicious"  Hooker, 
Hazlitt's  "Table  Talk,"  and  the  "Spectator,"  and  at 
times  he  writes  of  re-reading  Shakespeare  on  his  short 
journeys. 

This  is  a  meagre  list,  to  be  sure,  but  it  is  not  fair 
to  limit  the  catalogue  of  his  mental  library  by  the 
journal  entries.  Several  times  he  speaks  of  "read 
ing,"  without  naming  book  or  author.  "My  mode 
of  life"  one  summer  in  town,  for  example,  he  says, 
has  been  "as  follows:  Rise  at  six,  take  a  swim  in  the 
back  bay  at  Braman's,  and  read  and  write  till  half- 
past  eight."  The  journal  has  lapses,  first  of  w^eel 
then  of  months,  and  later  of  half  years,  and  ceases, 
altogether  in  1859.  We  know,  for  example,  he  rea< 
re-read,  and  took  the  greatest  delight  in  Smith's 
"Rejected  Addresses,"  but  no  mention  of  them  ap 
pears  of  record.  As  another  illustration  of  the  im 
perfection  of  this  kind  of  cataloguing,  he  nowhere 

Sir  Samuel  Romilly,  three  volumes. 


18  RICHARD  HENRY  DANA,  JR. 

speaks  of  reading  Bolingbroke  or  Warburton,  but 
evidently  must  have,  from  the  following,  taken  from 
the  journal  account  of  his  first  visit  to  Washington 
in  1844:- 

"The  (U.  S.)  Supreme  Court  was  still  in  and  I 
heard  parts  of  arguments  from  Choate,  Daniel  Lord, 
and  Crittenden  and  a  little  ex  tempore  classical  en 
counter  between  Judge  Story  and  Choate,  relating 
to  a  quotation  from  Pope,  as  interpreted  by  Warbur 
ton  against  the  imputation  of  Bolingbroke.  Choate 
said,  'The  infidel  sentiment  the  poet  was  made  to 
utter.'  Judge  Story  broke  in  with  an  expression  in 
defense  of  Pope  from  the  charge  of  infidelity,  which 
Choate  explained  by  referring  to  his  own  phrase, 
'was  made  to  utter,'  meaning  what  Bolingbroke  had 
said,  and  they  both  simultaneously  referred  to  War- 
burton's  explanation.  This  little  episode  was  quite 
characteristic  and  agreeable.  I  doubt  if  Kentucky 
Crittenden  had  ever  heard  of  Warburton,  though  he 
might  of  Pope  and  Bolingbroke." 

Mr.  Dana's  delight  in  literature  is  constantly  man 
ifested  in  his  journal.  When  coming  back  from  short 
outings  and  settling  down  to  work  in  his  office,  he 
sometimes  wonders  how  it  might  be  if  he  had  a  com 
petence  and  leisure,  though  concluding  that  perhaps 
he  is,  after  all,  happier  in  hard  work.  These  Elysian 
dreams,  it  is  worth  noting,  include  "devoting"  him 
self  to  "literature."  In  the  autumn  of  1853,  he  says: 
"I  am  again  established  in  my  own  house.  .  .  . 
If  I  can  have  a  winter  of  successful  work  in  my  office 
and  in  my  library,  with  my  delightful  course  of  study 
before  me,  with  all  my  troubles,  shall  I  not  be  per 
fectly  happy?" 

Showing  how  such  things  interested  him,  we  may 


INTRODUCTORY  SKETCH  19 

note  that,  in  a  very  busy  period,  when  he  made  but 
three  entries  in  his  journal  in  three  months,  one  of 
them  is  as  follows,  November  27,  1849:  — 

"Sunday  Ev.  Spent  an  hour  at  Uncle  Edmund's. 
Talking  of  Boswell's  Johnson,  he  said  that  when  he 
was  in  England,  visiting  at  his  uncle's  (Rev.  Edmund 
Dana  of  Wroxeter,  Salop),  he  met  a  gentleman  by 
the  name  of  Lockhart  Johnstone,  a  near  relative  of 
Mrs.  Dana's,  who  was  a  daughter  of  Lord  Kinnaird 
and  niece  of  Sir  W.  Johnstone.  Mr.  Johnstone  had 
been  intimate  with  Dr.  Parr,1  and  some  time  in  his 
house.  He  said  Dr.  P.  told  him  that  Boswell  used  to 
make  a  minute  of  Dr.  J.'s  conversation  each  night 
when  he  got  home,  and  take  it  to  Johnson  the  next 
morning,  read  it  to  him  and  have  it  corrected.  Uncle 
E.  says  he  asked  Mr.  Johnstone  if  this  could  be  relied 
upon,  and  Mr.  J.  told  him  it  might  be,  for  he  had 
it  from  Parr  himself,  who  was  friendly  to  Johnson." 

Some  of  his  daughters,  after  "finishing"  their  edu 
cation,  as  was  the  too  common'phrase,  joined  a  reading 
club  of  friends,  taking  up  serious  history,  philosophy, 
and  literature.  They  were  surprised  to  find  that  their 
busy  lawyer  father  not  only  knew  a  great  deal  of 
what  they  were  studying,  but  was  able  and  willing 
to  suggest  and  explain.  While  it  is  clear  that  his  ex 
acting  profession  curtailed  his  general  reading,  yet, 
with  such  tastes  and  enthusiasm,  being  a  rapid  reader, 
hearing  stimulating  literary  talk,  and  with  books 
at  hand,  he  managed  to  be,  or  perhaps  I  had  better 
say,  could  hardly  be  kept  from  being,  a  remarkably 
well-read  man  among  well-educated  persons. 

In  philosophy,  he  studied  metaphysics  and  moral 
and  intellectual  philosophy  in  college,  and  planned  at 

1  Samuel  Parr,  LL.D.,  1747-1825. 


20  RICHARD  HENRY  DANA,  JR. 

one  time  to  pursue  these  studies  in  a  post-graduate 
course  with  Professor  James  Marsh  of  Burlington,  so 
great  was  his  interest  in  them.  Besides  reading  those 
philosophical  works  I  have  previously  mentioned,  he 
in  later  days  discussed  Spenser,  Comte,  Darwin,  Tyn- 
dall,  Huxley,  Emerson,1  and  some  of  the  modern 
German  philosophers,  with  his  father  and  brother 
Edmund,  who,  with  their  leisure,  had  time  to  read 
in  full  what  he,  with  his  quick  mind,  took  in  only  in 
talks  or  from  essays,  short  passages  and  criticisms. 
Comte,  for  example,  was  one  of  the  familiar  names 
in  the  Chestnut  Street  talks,  with  his  ideas  on  hu 
manity  as  the  "deus,"  and  "the  impluse  to  serve 
humanity"  as  "religion."  Mr.  Dana's  friend  and 
former  partner,  Mr.  Francis  E.  Parker,!  have  heard 
discoursing  on  modern  philosophy  with  my  father. 
Any  philosophy,  however,  which  seemed  to  militate 
against  Christianity  was  read  with  a  critical  eye,  not 
because  he  closed  his  mind  to  truth,  but  because  he 
queried  whether  every  new  philosophy,  however  plaus 
ible  or  convincing  it  might  seem,  was  in  reality  the 
truth.  As  he  said  to  me,  in  substance,  one  generation  or 
decade  has  been  carried  away  with  a  system  that  the 
next  modifies  or  refutes  altogether.  Even  in  nature, 
what  the  scientist  recently  ridiculed  as  impossible 
is  the  commonplace  of  to-day.  He  quoted  Professor 
Cooke  as  saying  he  had  had  to  change  his  fundamental 
ideas  of  chemistry  some  twenty  times.  He  believed 
there  were  mysteries  behind  the  phenomena  of  na 
ture  not  dreamed  of  by  the  physicists.  If,  for  exam 
ple,  matter  is  but  "centres  of  force,"  then,  said  he, 
matter  is  non-material,  as  we  think  of  the  material, 

1  He  writes  in  his  journal  of  going  out  of  town  to  hear  Emerson 
lecture. 


INTRODUCTORY  SKETCH  21 

and  comes  pretty  near  being  the  creation  of  an  om 
nipotent  spiritual  will.  This  view  of  "centres  of 
force"  is  coming  prominently  forward  again,  and  we 
are  told  the  marvelous  power  of  these  forces  is  some 
thing  almost  beyond  belief.  We  do  not  know  what  a 
law  of  nature  is.  The  usual  definition,  "an  observed 
sequence  of  phenomena,"  explains  nothing.  Some 
German  philosophers,  he  remarked,  doubted  the  uni 
versality  of  the  laws  of  time  and  space.  Our  reasoning 
on  infinity  brings  us  to  contradictions.  He  believed 
Coleridge's  idea,  that  human  reason  is  limited  perhaps 
wholly  to  the  scope  of  its  experience.  If,  even  in  thi 
region  of  experience,  Mr.  Dana  added,  it  cannot  ex 
plain  such  familiar  things  as  matter,  or  the  laws  of 
nature,  or  even  what  electricity  is,  or  chemical  affinity, 
how  can  the  human  mind  be  trusted,then,  in  its  theories 
of  the  great  cause  of  all,  of  the  supernatural  and  of 
eternal  life?  The  one  thing,  he  said,  that  has  lasted 
through  all  this  change,  is  religion.  Men  have  changedf 
their  philosophical  views  of  matters  religious,  but 
religion  itself  has  outlasted  all  else;  therefore  let  us 
not  easily  throw  it  aside  at  the  bidding  of  the  last 
thinker.  Nor  would  natural  religion  be  enough.  So 
cial  and  economic  conditions  may  lead  to  certain 
utilitarian  morals;  but  the  idea  that  "honesty  is  the 
best  policy,"  for  example,  probably  never  made  any 
man  really  honest  in  matters  not  likely  to  be  found 
out. 1  He  believed  it  was  only  the  love  of  a  personal 
God  that  would  influence  men  to  real  goodness,  and 
that  the  highest  love  of  God  was  aroused  in  human 

1  There  is  found,  in  one  of  Mr.  Dana's  public  addresses,  the  following: 
"Aristotle,  the  greatest  of  all  reasoners,  says  the  attempt  to  apply  geo 
metrical  rules  to  moral  reasoning  leads  to  the  most  dangerous  of  all  soph 
istries." 


22  RICHARD  HENRY  DANA,  JR. 

beings  through  the  manifestation  of  God  in  the  Son 
of  Man. 

Berkeley's  philosophy,  so  like  that  of  the  post- 
Kantian  idealists,  was,  he  told  me,  a  comfort  to  him. 
He  named  the  street  in  Cambridge,  where  he  built 
his  house,  after  that  Lord  Bishop  philosopher.  Had 
he  lived  to  read  "Robert  Elsmere,"  what  would  have 
been  his  comment  on  the  words  of  Henry  Gray, 
"God  is  not  wisely  trusted  when  declared  unintel 
ligible."  "Such  honor  rooted  in  dishonor  stands; 
such  faith  unfaithful  makes  us  falsely  true."  "God 
is  forever  reason;  and  His  communication,  His  reve 
lation  is  reason"?  I  believe  it  would  have  been  some 
thing  like  this,  judging  from  his  many  talks  on  kin 
dred  subjects.  "If  by  'unintelligible'  is  meant  that 
human  reason,  limited  by  concrete  experience  of 
finite  things,  is  expected  to  reject  what  it  cannot 
comprehend  of  the  infinite  spirit,  then  I  should  ask 
how,  a  priori,  could  such  intelligence  be  expected, 
unless  we  limit  the  immortal  mortalwise,  the  infinite 
finitely,  and  the  great  first  creator  creaturewise  ? 
If,  however,  it  is  conceded  that  our  faith  may  tran- 
"ihscend  experience,  may  apprehend  though  not  com 
prehend  the  infinite,  but  that  it  should  not  contradict 
reason,  then  these  words  of  Gray's  I  adopt." 

These  statements  may  not  meet  acceptance  at  the 
hands  of  modern  philosophers;  but  what  statement 
is  accepted?  It  is  somewhat  gratifying  to  those  in 
the  outer  courts  to  hear  that  there  is  no  complete 
agreement  among  those  in  the  inner  temple.  At  a 
recent  after-dinner  address,  the  late  Professor  James 
said  of  the  Philosophical  Department  at  Harvard, 
"We  are  united  because  each  thinks  the  others  are 
cultivating  the  soil  from  which  truth  may  spring, 


INTRODUCTORY  SKETCH  23 

but  not  because  we  all  agree.  We  do  not  disagree, 
chiefly  because  none  of  us  understand  what  the  others 
are  saying." 

In  private  talks  with  me  in  1875  to  1878,  he  ex 
pressed,  as  possible,  views  of  religion  which  at  that 
time  would  have  been  considered  as  "advanced," 
but  such  as  are  now  generally  held,  or  at  least  al 
lowable,  by  thinkers  of  his  church  in  America  and 
England.  To  sum  up,  Mr.  Dana,  in  his  religious 
opinion,  was  conservative,  not  easily  carried  away 
by  new  views,  but  open-minded,  fair,  and,  above  all, 
not  dogmatic. 

In  political  economy,  I  remember  my  astonishment, 
while  an  undergraduate,  as  he  told  me,  during  a  walk 
over  the  West  Boston  Bridge,  that,  though  a  Repub 
lican,  he  believed  that  the  best  authorities  were 
against  a  high  protective  tariff.  He  said  the  party 
had  become  committed  to  protection  as  a  method  of 
raising  funds  during  the  war,  and  to  offset  the  high 
internal  revenue  taxes  on  certain  home  products. 
Later,  as  I  studied  political  economy  more  fully,  I 
came  to  appreciate  his  position. 

While  in  college  I  took  several  courses  in  philoso 
phy  and  did  some  collateral  reading  in  this  branch. 
I  was  surprised,  in  talking  with  my  father,  to  find 
how  much  he  knew  of  what  I  thought  was  beyond 
his  reading.  Later  in  life,  he  became  more  tolerant 
of  some  of  the  new  philosophical  ideas  as  they  became 
better  understood,  and  accepted  them.  As  to  accept 
ing  them,  Mr.  Dana  did  not,  like  the  late  Philip 
Henry  Goss,  F.  R.  S.,  in  his  "Omphalos,"  believe 
that  the  earth,  with  its  fossils  and  glacial  marks, 
was  created  just  as  it  is  by  one  catastrophic  act  in  a 
day  of  twenty -four  hours.  He  admitted  long  peri- 


24  RICHARD  HENRY  DANA,  JR. 

ods  of  development  and  evolution,  but  he  believed 
it  was  evolution  by  successive  creations,  not  by  nat 
ural  selection  alone.  Indeed,  as  it  now  appears,  nat 
ural  selection  is  not  the  final  word,  nor  the  whole 
explanation.  Whatever  the  ultimate  conclusion, 
there  are  at  least  sudden  developments,  now  called 
"mutations,"  which  are  preserved,  modified  or  lost 
by  natural  selection,  but  which  are  not  caused  by  it. 

As  to  Mr.  Dana's  attitude  toward  Darwinism,  we 
must  remember  that  Agassiz  had  not  accepted  that 
when  he  died  in  1874,  and  Mr.  Dana  survived  Agas 
siz  less  than  eight  years.  In  a  letter  to  one  of  his 
married  daughters,  written  from  Rome,  eight  months 
before  his  own  death,  speaking  of  the  poetry  and 
romance  inseparably  connected  with  that  city,  he 
says,  with  a  touch  of  humor:  "Thank  God,  imagi 
nation  and  sentiment  are  still  the  strongest  forces 
we  have  to  deal  with,  notwithstanding  the  attempt 
of  scientists  to  debase  the  nature  of  man." 

In  biography  Mr.  Dana  was  much  interested,  and, 
of  course,  in  all  American  history.  He  kept  scrap- 
books  and  bound  volumes  of  pamphlets,  in  which 
all  the  best  current  speeches,  arguments,  party  plat 
forms,  and  the  like  were  preserved,  which  enabled 
him  to  make  immediate  reference  to  them  in  prepar 
ing  his  public  speeches  and  addresses.  He  belonged 
to  a  "Book  Club"  in  Cambridge,  was  an  original 
member  and  constant  attendant  of  the  celebrated 
Saturday  Club  l  even  before  it  was  organized  and 
named,  and  was  sometimes  present  at  the  Longfellow 
Dante  readings,  out  of  which  grew  the  famous  Dante 
Society. 

As  a  part  of  his  literary  work  after  beginning  his 

1  See  Adams's  Life,  vol.  ii,  pp.  162-170  and  359-360. 


INTRODUCTORY  SKETCH  25 

law  practice,  he  wrote  an  account  of  Professor  Ed 
ward  Tyrrel  Channing  as  introduction  for  the  pub 
lished  "Lectures,"  edited  Allston's  "Sylphs  of  the 
Seasons"  and  "Poems"  and  "Lectures  on  Art,"  and 
wrote  biographical  sketches  of  Major  Vinton,  of 
Rev.  Leonard  Woods,  of  Judge  Wilde,  part  of  Ran- 
toul's,  and  others.  Mr.  Dana's  Lyceum  lecture, 
"Sources  of  Influence,"  which  he  delivered  so  often, 
is  not  written  out  in  full,  but  in  part  as  mere  head- 
notes.  In  that  he  took  the  stand  that  what  we  call 
temperament  or  character  had  more  to  do  with  | 
man's  influence  than  his  learning.  This  he  illustrated 
from  history,  literature,  biography,  and  experience 
in  life.1  He  also  gave,  in  various  cities  from  Balti 
more  to  Portland,  what  he  calls  his  "Sea  Lecture," 
one  on  "Knowledge  is  Power,"  one  called  "American 
Loyalty,"  one  on  Edmund  Burke,  and  another  on 
"English  Contrasts,"  all  of  which  took  him  outside 
of  his  professional  work.  None  of  these  latter,  how 
ever,  are  in  complete  form  for  publication.2  The 
"English  Contrasts"  is  of  little  novelty  to-day,  as  so 
many  people  visit  England  now.  If  published  it 
would  be  of  interest  chiefly  as  showing  the  contrasts 
between  the  America  of  1856  and  of  1910.  In  1856 
our  railway  "depots"  were  mostly  of  wood  with 
wooden  platforms,  a  general  air  of  dirt  and  uncleanli- 
ness  about,  with  no  shrubbery  or  ornamental  grass 
and  flowers.  The  rails  were  light,  the  bridges  mostly 
of  wood,  grade-crossings  were  the  rule,  the  cars  were 
noisy  and  dirty,  and  the  cinders  almost  unendurable. 

1  See  Adams's  Life,  vol.  i,  pp.  42-45  and  114. 

2  See  Bibliography  at  end  of  this  volume  for  various  published 
speeches,     addresses,     letters,     political     "  resolutions,"     and    lec 
tures. 


26  RICHARD  HENRY  DANA,  JR. 

There  were  almost  no  well-kept  private  lawns,  even 
in  the  suburbs,  hardly  any  good  architecture,  and 
almost  no  art. 

As  a  part  of  the  preparation  for  his  profession, 
he  studied  double-entry  bookkeeping,  and  for  many 
years  while  practicing  law,  he  kept  his  cash-book, 
journal,  ledger,  and  day-book,  making  all  the  entries 
and  postings  himself,  footing  the  columns  and  making 
trial  balances.  Later  he  simplified  his  system,  keep 
ing  only  check-book,  office-ledger,  and  docket.  Even 
to  the  end,  most  of  them  are  in  his  own  handwriting. 
The  early  experience  in  bookkeeping  he  found  most 
helpful  in  tracing  out  the  transactions  and  cross- 
examining  the  expert  witnesses  in  some  of  the  bank 
ing  and  business  lawsuits.  The  amount  of  labor  this 
bookkeeping  entailed,  while  he  was  in  court  all  day, 
was  enormous;  but  labor  he  did  not  shirk.  His  were 
no  eight-hour  days. 

I  can  best  sum  up  this  cultivation  of  his  own 
garden-plot  by  quoting  the  entry  in  his  journal,  made 
on  first  taking  possession  of  his  study  in  his  new 
house  in  Berkeley  Street,  Cambridge,  March  16, 
1852:  "May  my  private  room  be  consecrated  to 
study  and  thought,  for  my  own  good  and  the  good 
of  my  fellow-men." 

I  must  say  a  word  as  to  some  of  the  statements 
in  Adams's  Life,  especially  in  the  chapter  of  Remi 
niscences,  as  it  appeared  in  the  first  edition.  In  a 
later  edition  Mr.  Adams  made  important  corrections; 
but  it  is  the  first  edition  that  most  of  Mr.  Dana's 
friends  read  and  that  is  in  most  of  the  libraries.  Before 
proceeding  further,  however,  I  want  to  repeat  how 
deeply  Mr.  Dana's  family  are  indebted  to  Mr.  Adams 
for  what  seems  to  them  the  fine  way  in  which  he 


INTRODUCTORY   SKETCH  27 

treated  his  subject,  and  how  small  a  part  the  criticisms 
here  made  bear  to  the  admirable  whole. 

Mr.  Adams's  idea  that  Mr.  Dana  was  "not  an 
especial  admirer  of  Milton"1  came  from  a  letter  to 
his  wife,  in  which  he  made  fun  of  her  great  knowledge 
of  that  poet.  This  was  really  intended  as  a  humorous, 
indirect  compliment,  as  she  could  recite  pages  on 
pages  of  Milton's  poems,  while  he  knew  by  heart 
only  short  passages  or  quotations.  That  he  admired 
Milton  as  a  poet  and  writer  (though  not  as  a  theo 
logian)  is  evidenced  by  the  fact  that  he  read  the 
"Paradise  Lost"  twice,  and  the  "Paradise  Regained" 
and  "Samson  Agonistes"  once  with  me  in  our  too 
brief  Sunday  afternoon  hours  while  I  was  in  college 
and  the  Law  School,  and  the  "Hymn  of  the  Nativity" 
to  us  all  nearly  every  Christmas  Eve;  and  also  by  the 
marginal  marks  in  the  three-volume  edition  of  Mil 
ton's  Poems  he  bought  while  he  was  in  the  Law 
School.  He  had  to  rebind  it  in  the  seventies.  It  had 
nearly  come  apart  from  frequent  use. 

As  to  his  "not  caring  for  Tennyson,"  Mr.  Adams 
inferred  that,  because,  in  1856,  returning  from  his 
delightful  trip  in  England,  he  said  he  had  seen  all2 
those  he  cared  to  see,  and  yet  he  did  not  see  Tenny 
son.3  Such  words  should  not  be  taken  too  literally. 
The  remark  was  an  ebullition  of  enthusiasm,  not  a 
mathematical  census  of  his  admirations,  based  on 
a  count  of  noses.  Perhaps  it  may  be  true  that  he  did 
not  particularly  care  to  see  Tennyson  personally. 
He  was  aware  of  Tennyson's  dislike  of  strangers,  and 
especially  of  Americans,  and  I  remember  my  father 
said  to  me,  and  Mr.  Lowell  confirmed  it,  when  I  was 

1  Life,  vol.  ii,  p.  151.  2  His  journal  says  "almost  all." 

3  Life,  vol.  ii,  p.  151. 


28  RICHARD  HENRY  DANA,  JR. 

about  to  visit  England,  "You  had  better  know  Ten 
nyson  from  his  works."  A  distinguished  American 
author,  a  friend  of  my  father's,  told  me  of  Tenny 
son's  morbid  state  of  mind  on  the  subject  of  strangers. 
While  walking  in  the  garden  at  Farringford,  Isle  of 
Wight,  Tennyson  pulled  him  aside  and  said  ear 
nestly,  "People  are  looking  at  me  through  the  hedge," 
when  there  was  no  one  to  be  seen  there;  and,  while 
on  the  housetop,  looking  at  the  view,  Tennyson 
exclaimed,  "There  they  are,  rushing  to  look  at  me!" 
when,  in  reality,  some  farm-hands  were  merely  has 
tening  to  shelter  from  a  threatening  shower.  This 
was  said,  too,  in  the  way  of  complaint,  not  in  a  vein 
of  humor. 

As  to  not  seeking  out  Darwin  in  1856,  very  possibly 
Mr.  Dana  would  not  have  had  sufficient  sympathy 
with  Darwin's  views  to  look  him  up,  even  had  he  been 
visiting  England  later.  But,  though  somewhat  known 
among  scientists,  Darwin  had  not  made  his  great 
popular  reputation  in  1856.  His  "  Origin  of  Species 
by  Means  of  Natural  Selection"  was  published  in 
1859,  and  his  "Descent  of  Man"  not  until  1871. 

In  general,  therefore,  it  may  be  said  that  it  was 
through  such  natural  advantages,  by  means  of  such 
preparation  in  school  and  college,  and  such  industry 
all  through  life,  that  Mr.  Dana  was  equipped  to 
prepare  such  an  oration  as  that  on  Edward  Everett 
with  only  three  weeks'  notice;  and  that  he  was 
enabled,  for  example,  in  the  celebrated  case  of  Dalton 
v.  Dalton,  and  in  many  another  unpublished  legal 
contest,  to  cap  the  wealth  of  illustration  and  quota 
tion  in  Rufus  Choate's  arguments,  sometimes  turn 
ing  them  against  his  renowned  opponent,  or  at  a 
moment's  notice  to  give  such  an  address  as  that  on 


INTRODUCTORY   SKETCH  29 

Mr.  Choate's  death  at  the  meeting  of  the  Suffolk 
Bar  in  1859. 

As  to  Mr.  Dana's  argument  in  the  Dalton  case,  I 
have  not  included  it  among  these  speeches.  It  was, 
according  to  the  custom  of  those  times,  long.  Then 
lawyers  reiterated  the  same  idea  over  and  over,  from 
every  point  of  view  and  in  varied  language,  and  ham 
mered  in  again  and  again  certain  telling  phrases,  lest 
one  single  juror  should  fail  to  understand.  That  was 
a  day  when  people  were  used  to  long  prayers,  long 
sermons,  and  long  lectures.  Mr.  Dana's  argument 
in  this  case  is  about  66,000  words,  and  would  make 
up  half  a  volume  in  print.  It  took  twelve  hours  to 
deliver;  but  he  had  to  meet,  single-handed,  the  com 
bined  onslaughts  of  the  two  best  lawyers  of  the  state, 
Rufus  Choate  and  Henry  F.  Durant,  and  an  ex 
tremely  hostile  judge,  and  had  to  combat  a  popular 
prejudice  raised  against  his  client  in  the  press.  He 
had  to  counteract  Choate's  ten  hours  of  eloquence. 
It  was  a  case  of  divorce  against  a  wife  on  the  scrip 
tural  ground,  and  Mr.  Dana  was  for  the  husband. 
Mr.  Dana's  argument1  shows  a  most  delicate  han 
dling  of  a  cause  scandaleuse.  He  succeeded  in  making  a 
deep  impression  on  the  public  in  favor  of  his  client, 
and  won  over  eleven  out  of  twelve  jurors,  though 
he  had  the  burden  of  proof.  The  twelfth  juror  after 
wards  explained  that  he  was  influenced  by  just  one 
argument  of  Choate's,  and  that  was :  "  If  you  acquit,  if 
you  show  that  a  Suffolk  jury  assures  him  his  surmises 
are  groundless,  will  it  not  be  he  rather  than  she  that 
will  have  occasion  to  bless  you  for  your  judgment?" 

A  curious  coincidence,  the  story  of  which  should 

Reprinted  in  pamphlet  form,  and  to  be  found  in  many  of  the  older 
libraries. 


30  RICHARD  HENRY  DANA,  JR. 

not  be  lost,  arose  about  this  case  and  the  twelfth 
juror's  reason  of  action.  Some  years  after  Mr. 
Choate's  death,  Mr.  Dana  was  relating  to  a  younger 
lawyer  in  his  office,  Mr.  E.  N.  Hill,  the  chief  incidents 
of  this  case.  Just  then,  Mr.  Durant,  the  only  other 
living  person  connected  with  its  conduct,  unexpect 
edly  called  to  see  Mr.  Dana's  partner.  Mr.  Dana  then 
closed  the  door  of  his  private  room  so  as  to  talk  more 
freely.  He  had  just  reached  the  end  of  the  narrative, 
and  explained  the  action  of  the  twelfth  juror,  when 
a  knock  came  on  his  door.  He  went  to  it,  and  there 
was  a  man  with  the  dress,  voice,  and  mariners  of  a 
Westerner.  He  said,  "Mr.  Dana,  you  do  not  recog 
nize  me;  I  was  one  of  your  clients."  To  this  Mr. 
Dana  replied  that  he  had  many  clients,  his  memory 
for  faces  was  bad  on  account  of  near-sightedness,  and 
perhaps,  too,  his  client  had  changed  in  appearance. 
Then,  to  his  astonishment,  came  out  the  name, 
"Dalton."  Dalton  explained  that,  after  his  first  dis 
appointment,  he  had  become  more  and  more  im 
pressed  with  the  same  point  in  Mr.  Choate's  argu 
ment  that  had  influenced  the  twelfth  juror;  that, 
failing  to  get  his  divorce,  he  decided  to  make  it  up 
with  his  wife;  that  they  went  to  a  far  western  terri 
tory  where  their  names  were  unknown,  and  there 
started  life  anew.  They  had  had  several  children  and 
lived  happily,  and  he  was  glad  he  did  not  succeed  in 
his  lawsuit.1  Does  any  instance  of  supposed  telepathy, 
or  psychic  influence,  show  a  more  remarkable  coin 
cidence  than  Mr.  Dana's  narrative  and  the  accidental 
coming  close  together  of  the  three  chief  actors  then 
living? 

1  Mr.  E.  N.  Hill  confirms  this  story  just  as  I  recall  hearing  it  from  my 
father,  so  this  strange  coincidence  depends  not  on  my  memory  alone. 


INTRODUCTORY  SKETCH  31 

There  was  another  cause  celebre  et  scandaleuse  in 
which  Mr.  Dana  took  part.  In  this  he  defended  a 
then  well-known  clergyman,  "a  brilliant  orator,  who 
drew  like  a  magnet,"  from  the  criminal  charge  of 
adultery.  This  case,  too,  Mr.  Dana  handled  with  the 
utmost  delicacy.  The  few  points  on  which  he  had  to 
speak  plainly  he  condensed  into  a  few  short  sentences. 
The  whole  argument  was  only  one  fifth  of  the  length 
of  his  argument  in  Dalton  v.  Dalton.  He  drove 
through  the  government's  case  like  a  troop  of  cavalry 
on  full  gallop,  and  carried  the  jury  and  audience 
along  with  him.  Notwithstanding  this  unanimous 
acquittal  by  the  jury,  this  clergyman's  subsequent 
reputation  was  such  as  to  cause  him  to  leave  Boston 
for  the  middle  west.  "From  there  he  took  another 
flight  to"  the  Pacific  coast,  where  later  he  was  elected 
Mayor  of  San  Francisco  as  the  candidate  of  the  Sand- 
Lots  party  in  the  days  of  Denis  Kearney,  and  there 
he  became  involved  in  exciting  episodes  not  necessary 
to  follow  out  here.  Into  the  defense  of  this  man  Mr. 
Dana  had  put  his  best  efforts,  in  the  full  belief  of  the 
innocence  of  his  client,  and  Mrs.  Dana  had  aided 
him  with  some  suggestions.  To  his  infinite  disgust, 
after  the  trial  was  over  and  after  his  client  was  assured 
there  was  no  appeal,  and  that  the  constitution  of 
Massachusetts  protected  him  from  retrial,  no  matter 
what  new  evidence  might  turn  up,  he  boasted,  or  as 
Mr.  Dana  graphically  stated  it,  "kicked  up  his  heels" 
and  said,  "I  did  it,  though!" 

This  may  lead  us  to  answer  the  question,  so  often 
in  the  minds,  if  not  on  the  tongues,  of  laymen,  how 
a  man  so  high-minded,  nay,  "lofty-minded"  as  Mr. 
Lowell  says  of  him,  can  practice  law  when  he  must 
have  to  defend  men  he  knows  to  be  guilty.  On  this 


32  RICHARD  HENRY  DANA,  JR. 

subject  my  father  often  spoke  somewhat  as  follows: 
Every  one  charged  with  crime  has  a  constitutional 
right  to  have  the  case  proved  against  him  beyond 
the  reasonable  doubt  of  a  jury.  In  taking  such  a 
position  for  a  client,  however,  the  lawyer  must  not 
mislead  the  court.  His  duty  is  to  stand  by  and  see 
that  no  inadmissible  evidence  is  produced  by  the  pro 
secution,  and  that  the  witnesses'  statements  agree  and 
will  bear  cross-examination;  but  to  get  up  a  false  alibi, 
for  example,  is  not  only  not  required  of  a  lawyer,  but  is 
against  his  oath  of  office 1  and  a  cause  for  disbarment. 
Such  cases  of  putting  the  government  to  its  proofs 
as  a  part  of  the  constitutional  right  of  an  accused, 
where  there  is  no  other  defense,  are  uncommon,  and 
in  a  long  and  varied  practice,  Mr.  Dana  never  had 
to  do  this  when  he  knew  that  his  client  was  guilty. 

The  nearest  to  such  an  attitude  that  he  ever  took 
was  his  defense  of  the  fugitive  slave,  Anthony  Burns. 
Mr.  Dana  believed  the  Fugitive  Slave  Law,  though 
pronounced  constitutional,  to  be  immoral  and  unjust 
in  many  of  its  provisions,  and  that  a  man,  free  under 
the  laws  of  Massachusetts,  should  have  the  right  to 
compel  the  claimants  to  show  their  proofs  and  estab 
lish  them  by  the  strictest  rules  of  law  and  evidence. 
Mr.  Dana  showed  that  the  testimony  on  identity  was 
contradictory,  and  argued  that  they  had  not  made 
out  a  case,  though  he  doubtless  felt  morally  sure  that 

1  The  oath  of  office  in  Massachusetts  is  as  follows :  You  [Richard  H. 
Dana],  solemnly  swear  that  you  will  do  no  falsehood  nor  consent  to  the 
doing  of  any  in  court;  you  will  not  wittingly  or  willingly  promote  or  sue 
any  false,  groundless  or  unlawful  suit,  nor  give  aid  or  consent  to  the 
same;  you  will  delay  no  man  for  lucre  or  malice;  but  you  will  conduct 
yourself  in  the  office  of  an  attorney  within  the  courts  according  to  the 
best  of  your  knowledge  and  discretion,  and  with  all  good  fidelity  as  well 
to  the  courts  as  your  clients.  So  help  you  God. 


INTRODUCTORY   SKETCH  33 

the  Anthony  Burns  he  was  defending  was  a  runaway 
slave  of  that  name,  and  belonged  to  some  one.  Then 
there  was  also  doubt  whether  Button,  the  claimant 
in  that  case,  had  not  really  lost  his  claim  by  having 
leased  Burns  to  another. 

Mr.  Dana,  it  is  true,  had  cases  when  he  knew  his 
client  had  done  an  act,  as  in  the  Peter  York  case; 
but  his  part  was  only  to  try  and  prove  by  evidence 
and  argument  that  the  act  was  manslaughter  and 
not  murder,  or  in  other  cases  that  it  was  trespass 
instead  of  larceny,  or  that  the  defendant  was  insane, 
or  that  criminal  intent  was  lacking,  or  to  show  miti 
gating  circumstances  that  would  reduce  the  penalty. 
To  illustrate,  take  the  following  from  his  journal 
under  date  of  December  14,  1842:  — 

"Defended  an  Irishman  named  David  Keefe  for 
assaulting  his  wife  with  intent  to  kill.  The  evidence 
was  so  strong  against  him  that  I  only  argued  the 
possibility  of  its  not  being  done  with  a  murderous 
intent.  He  was  convicted.  I  satisfied  the  court  that 
he  was  a  temperate,  industrious,  and  faithful  man,  and 
he  was  sentenced  to  one  year  in  State  Prison." 

But  the  query  sometimes  takes  another  form.  If 
the  lawyer  does  not  take  a  case  he  knows  to  be  wrong, 
does  he  not  take  cases  in  which  he  does  not  believe? 
First,  the  personal  contact  with  the  client,  who  per 
sists  in  his  innocence,  or  the  justice  of  his  cause, 
arouses  a  sympathy  and  belief  that  the  distant  public 
may  not  share;  indeed,  the  real  danger  to  the  cause 
of  justice  comes,  in  actual  practice,  from  too  much 
sympathy  for  and  belief  in  one's  client,  not  from  too 
little;  but  second,  and  most  important,  the  lawyer 
has  no  right  to  disbelieve  a  client.  He  should,  it  is 
true,  examine  his  client's  statements,  for  the  double 


34  RICHARD  HENRY  DANA,  JR. 

purpose  of  better  understanding  the  case  and  testing 
its  truth;  but  it  is  when  the  circumstances  are  most 
incriminating  to  an  innocent  man,  when  the  press 
and  the  public  are  most  against  him,  that  he  most 
needs  the  services  of  able  counsel.  A  cold-blooded 
murderer  may  add  to  his  dark  deed  the  despicable 
plan  of  committing  it  in  such  a  way  as  to  throw  sus 
picion  upon  another,  to  divert  attention  from  him 
self.  What  would  happen  then  if  a  lawyer  should  say 
to  the  innocent  man  under  such  suspicion,  "Oh,  I 
have  read  the  papers  and  believe  you  are  very  likely 
guilty,  and  therefore  I  will  have  nothing  to  do  with 
you "  ?  If  one  reputable  lawyer  may  do  this,  then 
another  may,  and  the  disheartened  man  will  be  de 
prived  of  all  reputable  support  in  the  hour  of  his 
great  stress.  No,  the  lawyer  is  an  officer  of  the  court. 
Our  system  of  jurisprudence  is  to  have  one  such 
officer  support  one  side  and  another  the  other,  and 
then  to  have  the  jury,  with  the  aid  of  the  judge,  make 
the  final  decision. 

There  is  actual  danger  to  justice  in  disbelieving 
one's  client  too  readily.  There  is  a  celebrated  Ver 
mont  case  which  my  father  told  somewhat  as  follows : 
An  old  man  was  missing.  He  was  last  seen  by  his 
neighbors  going  into  the  forest,  in  the  direction  where 
two  young  men  were  cutting  wood.  These  young 
men  owed  him  money  which  they  were  unable  to 
repay.  He  held  their  notes  for  this  money,  and  these 
notes  were  also  missing.  Blood  was  found  on  the 
clothes  of  the  young  men.  Their  defense  was  that  the 
blood  was  the  blood  of  their  dog,  killed  by  the  slip 
ping  of  an  ax,  on  the  very  day  the  old  man  had  dis 
appeared.  N'o  one  believed  their  story,  not  even  their 
own  lawyer.  He  advised  them  to  plead  guilty,  urging 


INTRODUCTORY   SKETCH  35 

that  perhaps  a  frank  confession,  saving  the  expense 
to  the  country  of  a  trial,  might  give  him  ground  to 
secure  from  the  governor  a  commutation  of  the  death 
sentence  to  imprisonment  for  life.  But  even  this 
failed.  The  day  fixed  for  the  hanging  was  close  at 
hand  when,  to  their  joy,  the  old  man  turned  up  alive. 
He  had  wandered  way  out  to  Ohio  in  a  dazed  condi 
tion  of  mind;  and  on  his  person  were  found  the  miss 
ing  notes.  Then,  for  the  first  time,  the  public,  the 
governor  and  their  lawyer  believed  the  whole  story 
of  the  dog  and  the  slipping  ax,  and  then  the  youths 
were  set  free. 

My  father  further  illustrated  the  same  idea  by  the 
story  of  how  Charles  G.  Loring  gave  up  a  case  in 
court,  because  he  found  his  chief  witnesses  answered 
falsely  on  one  point.  He  was  on  the  side  of  an  insur 
ance  company  resisting  payment  for  loss  of  a  vessel 
which  Mr.  Loring  contended  had  been  scuttled.  It 
turned  out  afterwards  that  his  case  was  right,  that 
the  main  story  was  true.  The  vessel  when  raised  was 
found  with  the  holes  bored  in  her  bottom;  but,  sailor- 
like,  the  chief  witness  had  tried  to  support  the  truth 
by  some  "collateral  lying." 

I  had  somewhat  the  same  experience  in  principle, 
though  the  reverse  in  details,  when  my  father  was 
alive.  We  were  for  the  cargo-owners,  claiming  insur 
ance  for  total  loss.  After  the  first  trial  of  the  case, 
and  as  it  was  about  to  be  tried  again,  our  chief  wit 
ness  told  us  for  the  first  time  that  the  ship  had  been 
scuttled,  and  said  he  would  tell  this  to  the  other 
side  if  our  clients  did  not  pay  him  $4000.  The  other 
side  had  not  even  suspected  scuttling;  but  we  went  to 
them,  told  them  the  story  of  our  chief  witness,  and 
urged  that  they  should  have  him  indicted,  both  for 


36  RICHARD  HENRY  DANA,  JR. 

his  perjury  at  the  first  trial  and  for  his  own  crimi 
nal  acts  in  connection  with  the  scuttling  he  had  dis 
closed  to  us.  Fortunately,  the  case  had  not  been 
concluded  before  we  found  by  new  and  unsuspected 
evidence  that  our  clients  were  in  the  right  after  all, 
and  that  our  chief  witness  had  got  up  a  false  story 
for  the  purpose  of  this  blackmail,  and  we  were  able 
in  the  end  to  make  a  favorable  settlement. 

If,  indeed,  a  lawyer  should  permit  himself  to  pre 
judge  his  client's  case,  and  only  to  take  such  side  as 
he  believed  the  more  likely  to  be  true,  who  would 
have  been  found  to  defend  Desdemona,  after  the 
incriminating  handkerchief  had  been  seen  in  Cassio's 
hands,  after  she  had  been  heard  to  befriend  him, 
speaking  of  "the  love  I  bear  to  Cassio,"  and  after 
Cassio's  (seeming)  confessions?  The  true  attitude  of 
the  lawyer  may  be  given  in  the  words  of  Professor 
Greenleaf,  which  Mr.  Dana  wrote  in  his  journal  about 
the  time  of  opening  his  law  office :  — 

"A  man  who  begins  law  properly  and  studies  it 
philosophically,  will  never  find  it  dry.  And  if  he 
^practices  it  upon  the  principles  of  Christianity  and 
professional  honor,  and  conscientiously  as  a  man  and 
a  member  of  the  body  politic,  his  interest  in  it  will 
increase  as  he  goes  forward  in  life." 

Or  again,  in  Mr.  Dana's  estimate  of  Charles  G. 
Loring,  in  whose  office  he  studied  law:  - 

"It  gives  me  pleasure  to  combine  my  testimony 

with  that  of  all  others  who  knew  him,  to  the  high 

tone  of  professional  morals  and  gentlemanly  conduct, 

fcndness,  liberality  and  perfect  fairness  and  integrity 

.:  of  that  gentleman." 

We  have  been  considering  the  orderly  and  logical 
mode  of  expression  and  the  historical,  literary,  clas- 


INTRODUCTORY  SKETCH  37 

sical  and  philosophical  illustration  with  which  Mr. 
Dana  enriched  his  arguments,  and  the  moral  ground 
on  which  he  practiced  law.  To  complete  the  literary 
portrait,  we  ought  now  to  go  back  to  his  grasp  of 
fundamental  principles  of  law,  and  his  presentation 
of  them  before  the  court,  on  which  we  touched  briefly 
in  the  early  part  of  this  sketch. 

While  he  was  District  Attorney  of  the  United 
States,  a  most  complicated  case  arose  about  the  con 
flicting  claims  of  the  United  States  Treasury  and  the 
State  National  Bank  to  certain  funds,  involving  n&w 
points  of  law  inter  apices  juris,  and  depending  upon 
an  intricate  and  much  involved  series  of  facts.  Mr. 
Dana  argued  for  some  hours,  following  out  the  course 
of  all  the  transactions,  with  dates,  amounts,  and 
names,  without  once  referring  to  his  notes  or  making 
a  single  mistake.  I  have  more  than  once  heard  the 
story  of  this  argument  from  lawyers  engaged  in  the 
case.  I  do  not  remember  all  they  said  or  exactly  how 
they  said  it;  but  the  general  impression  left  on  my 
mind  might  be  expressed  in  the  figure  of  a  plant,  with 
roots,  stem,  branches,  flower,  and  fruit,  all  developing 
as  if  by  magic  under  the  warming  climate  of  Mr. 
Dana's  own  creating.  This  held  the  attention  and  in 
terest  of  the  court  in  a  way  that  might  be  illustrated 
by  Morley's  description  of  Gladstone's  speeches  on  the 
budget:  "Peel's  statements  were  ingenious  and  able, 
but  dry;  Disraeli  was  clever  but  out  of  his  element; 
Wood  was  like  a  cart  without  springs  on  a  heavy  road; 
Gladstone  was  the  only  man  who  could  lead  his  hear 
ers  over  the  arid  desert,  and  yet  keep  them  cheerful 
and  lively  and  interested  without  flaging." 

In  the  Peter  York  case,  where  Mr.  Dana  took  the 
side  of  the  accused,  we  can  see  the  process  of  thought. 


38  RICHARD  HENRY  DANA,  JR. 

York  was  accused  of  murder.  The  killing  by  the  de 
fendant  was  proved,  but  there  was  a  doubt  as  to  the 
intent.  If  there  had  been  malice  aforethought,  it  was 
murder,  punishable  by  death;  if  the  act  was  done  in 
the  heat  of  passion,  suddenly  aroused,  it  was  man 
slaughter,  followed  by  a  lesser  penalty.  There  was 
just  enough  evidence  of  passion  from  sudden  con 
flict  to  raise  a  reasonable  doubt  in  the  minds  of  the 
jury,  but  not  enough  for  preponderating  proof. 
Should  the  jury  then  find  murder,  or  only  man 
slaughter?  The  answer  to  this  legal  question  meant 
to  his  client  death  or  life.  It  was  an  admitted  prin 
ciple  of  law  that  a  crime  must  be  proved  beyond 
reasonable  doubt  in  order  to  secure  conviction.  Mr. 
Dana  contended  that,  as  murder  consisted  of  two 
parts,  killing  and  malice  aforethought,  and  as  both 
must  concur  to  make  the  crime,  the  government  must 
prove  the  concurrence  of  both  beyond  the  reasonable 
doubt.  The  government,  on  the  other  hand,  con 
tended  that,  having  proved  the  killing,  there  was  a 
presumption  of  malice  aforethought,  that  is,  of  the 
worst  possible  motive,  that  the  burden  of  proof 
"shifted"  to  the  prisoner  to  disprove  this  presump 
tion,  and  that  if  the  jury  was  in  doubt  as  to  whether 
or  not  there  was  such  malice  aforethought,  it  should 
be  instructed  to  declare  for  murder.  Mr.  Dana 
argued  that  "from  the  mere  act  of  killing,  there  is  no 
presumption,  in  nature  or  from  experience,  that  it  is 
murder  rather  than  manslaughter.  Of  all  the  homi 
cides  that  are  committed,  few  are  found  to  be  mur 
der.  A  presumption  of  murder,  from  the  mere  fact 
of  killing,  is  therefore  contrary  to  reason  and  experi 
ence,  hence  against  liberty  and  life." 

The   language   employed   in   the   text-books   and 


INTRODUCTORY  SKETCH  39 

judicial  decisions  was  against  Mr.  Dana;  but  he 
maintained  that  this  language,  when  traced  back, 
either  originated  in  the  dark  days  of  trial  by  fire  and 
water,  or  arose  from  some  obiter  dictum  of  an  early 
judge,  in  a  decision  not  involving  the  present  issue, 
and  that  no  case  was,  on  its  facts,  ever  adjudicated 
against  his  proposition.  The  majority  of  the  court, 
in  a  very  learned  opinion  of  twenty-five  pages,  by 
Chief  Justice  Shaw,  decided  for  the  legal  presump 
tion,  from  the  killing,  of  the  worst  possible  motive 
and  a  consequent  death  sentence;  but  Judge  Wilde, 
in  a  dissenting  opinion  of  nine  pages,  upheld  Mr. 
Dana's  contention;  and,  strange  to  say,  it  is  this  dis 
senting  opinion  that  is  now  the  law  in  every  Anglo- 
Saxon  judiciary,  including  that  of  Massachusetts,  and 
not  only  in  cases  of  murder,  but  in  proving  motive 
in  all  crimes. 

Besides  demonstrating  the  right  rule  of  burden  of 
proof  in  prosecutions,  Mr.  Dana's  argument  had 
much  to  do  with  emphasizing  the  true  and  now  gen 
erally  accepted  doctrine  that,  in  determining  law 
from  precedents,  we  must  look  through  the  phrases 
employed  by  the  judges  in  their  opinions  to  the  actual 
principles  necessarily  involved  in  the  cases  they  have 
decided.  To  appreciate  the  change  in  this  respect 
since  1845,  a  lawyer  educated  in  such  modern  meth 
ods  as  are  employed  at  the  Harvard  Law  School,  for 
example,  need  only  read  Chief  Justice  Shaw's  opinion 
in  this  case. 

Perhaps  the  way  in  which  Mr.  Dana  brought  sim 
plicity  of  principles  out  of  apparent  chaos  can  best 
be  stated  by  his  own  words,  taken  from  his  journal 
of  September,  1854:  — 

"I  take  to  myself  the  entire  credit  of  the  case  of 


40  RICHARD  HENRY  DANA,  JR. 

the  Osprey1  just  decided  by  Judge  Sprague.  It  pre 
sented  the  question  directly,  what  the  rule  was  when 
a  steamer  met  a  sailing  vessel  going  free.  ...  A 
recent  case  of  Dr.  Lushington's,  City  of  London 
(4,  Notes  of  Cases),  was  directly  against  me.  He  held 
that,  in  such  a  case,  each  vessel  must  keep  to  the 
right.  I  carefully  examined  every  case  of  collision 
in  England  and  America,  and  made  up  my  mind  that 
there  was  a  rationale  which  lay  at  the  bottom  of  the 
whole  law  of  collision,  which  had  never  been  ex 
pounded  or  even  hinted  by  any  judge  or  commen 
tator,  and  wrhich,  if  sustained,  would  overturn  Dr. 
Lushington's  decision  and  give  me  my  case.  I  pre 
sented  it  in  full  to  Judge  Sprague,  in  an  argument  of 
nearly  four  hours  long,  illustrating  and  enforcing  it  in 
every  way  in  my  power.  I  acknowledged  it  to  be  new, 
but  told  him  that  by  propounding  and  enforcing  it, 
he  could  do  for  the  law  of  collision  what  the  great 
Lord  Holt  did  for  the  law  of  bailments  in  Coggs  v. 
Bernard.  The  result  wras  that,  after  a  deliberation 
of  ten  days  or  so,  Judge  Sprague  adopted  and  sanc 
tioned  it  entirely,  overruled  the  City  of  London,  and 
gave  me  my  case,  and,  what  was  more  gratifying  still, 
he  adopted  not  only  my  positions,  but  my  reasons, 
and  did  not  add  anything  material  to  my  argument." 
The  rationale  was  delightfully  simple,  as  is  so  often 
the  case  with  discoveries.  It  is,  "whether  the  two 
vessels  meet  on  terms  of  equality  or  inequality  .  .  . 
the  vessel  having  the  advantage  takes  the  whole  duty 
upon  herself,  and  the  other  vessel  keeps  her  course. 
If  the  favored  vessel  may  keep  her  course,  she  must  do 
so,  that  the  other  vessel  may  know  what  to  depend 
upon." 

1  1  Sprague,  p.  245. 


INTRODUCTORY   SKETCH  41 

Mr.  Dana's  view  is  still  the  established  law  of  all 
nations  on  the  high  seas.1 

How  Mr.  Dana  extricated  the  country  from  the 
dilemma  raised  by  the  Prize  Causes  during  the  early 
part  of  the  Civil  War  will  be  told  more  fully  in  the 
notes  to  the  Amy  Warwick  argument  and  his  expla 
nation  of  what  the  decision  meant. 

In  addition  to  Mr.  Dana's  naturally  philosophical 
and  logical  mind,  and  his  habit,  of  going  to  funda 
mental  principles,  his  literary  tastes  and  careful  culti 
vation  of  them,  I  wish  to  say  a  word  as  to  his  good, 
sound  judgment.  In  how  many  instances  of  doubt 
and  perplexity  in  the  public  mind,  Mr.  Dana's  views 
have  now  become  generally  accepted!  In  the  anti- 
slavery  times,  he  was  a  Free  Soiler,  not  an  Abolitionist. 
He  opposed  extension  of  slavery  to  new  states  and 
territories  theretofore  free.  He  preferred  Washing 
ton's  and  Lincoln's  ideas  of  gradual  emancipation  to 
sudden  abolition  of  existing  slavery.  He  felt  that  the, 
preservation  of  the  Union  and  the  Constitution  were 
matters  too  important  to  risk  by  agitation  for  exi 
treme  measures.  He  opposed  the  Fugitive  Slave  Law, 
not  because  it  was  improper  to  return  fugitive  slaves 
as  the  Constitution  then  was,  but  on  account  of  theJj 
drastic  and  unjust  provisions  of  that  law  itself.2  In 
the  John  Brown  episode,  before  the  Civil  War,  how 
calm  was  Mr.  Dana's  judgment!  "I  could  see  the 
courage  and  heroism  of  Brown,  but  to  my  mind, 
there  was  ...  an  unmistakable  vein  of  insanity  run 
ning  through  it."  Mr.  Dana  had  been  counsel  for 

1  Act  of  Congress,  August  19,  1890,  and  amendments  August  13, 
1890,  May  28,  1894,  June  10,  1896;  Arts.  20  and  21,  adopted  under  a 
general  plan  of  uniform  code  for  the  world. 

2  See  introductory  note  to  "Great  Gravitation  Meeting,"  post. 


42  RICHARD  HENRY  DANA,  JR. 

every  fugitive  slave,  and  for  most  of  those  who  were 
indicted  for  rescue,  and  he  plainly  noted  the  differ 
ence  between  a  fugitive  slave  and  the  John  Brown 
incident  in  these  words:  "When  a  man  is  escaping 
from  slavery,  it  is  a  question  between  his  freedom 
and  his  master's  money  .  .  .  and  in  a  question  be 
tween  freedom  and  money,  the  sympathies  of  every 
man  go  with  freedom;  but  an  appeal  to  arms  is  a 
war  of  races  .  .  .  and  I  confess  that,  in  a  contest  like 
that,  my  duty  and  my  sympathies  go  with  my  own 


race." 


Had  Mr.  Dana's  views  more  generally  prevailed 
in  the  forties  and  fifties,  we  should  have  avoided  the 
Civil  War  and  the  evils  of  sudden  emancipation  of 
the  whole  five  millions  of  an  enslaved  race  without 
preparation  for  freedom.  Just  as  the  Civil  War  was 
/pending,  he  urged  every  reasonable  conciliation  with 
Y/Nthe  South,  but  riot  submission  to  the  claims  of  slavery 
extension.  In  the  Prize  Causes,  it  was  good  judgment 
and  common  sense,  as  well  as  good  law,  in  Mr.  Dana, 
wholly  to  acknowledge  a  great  war  against  a  de  facto, 
though  wrongfully  formed,  nation,  and  to  point  out 
that  this  course  did  not  acknowledge  the  right  of 
secession  or  independence  of  the  confederacy,  or  allow 
other  powers  to  acknowledge  them.  He  turned  the 
English  acknowledgment  of  "  belligerency  "  into  an 
acquiescence  on  the  part  of  Great  Britain  in  our  right 
of  blockade. 

In  the  Trent  affair,  when  Mason  and  Slidell  were 
taken  off  that  British  steamer  by  an  American  war 
vessel,  Mr.  Dana  believed  that  we  should  take  Eng 
land's  former  attitude,  and  refuse  to  return  these 
gentlemen.  England  up  to  that  time  had  always 
claimed  the  power  of  taking  persons  out  of  neutral 


INTRODUCTORY  SKETCH  43 

vessels  in  time  of  war;  but  when  it  appeared  that 
England  was  ready  to  abandon  her  old  position,1  in 
favor  of  the  opposite  contention  of  the  United  States, 
urged  since  the  days  of  armed  neutrality  in  the 
Revolutionary  War,  through  the  War  of  1812,  and 
up  to  1861,  Mr.  Dana's  sound  sense,  as  well  as  his 
knowledge  of  international  law,  made  him  heartily 
acquiesce  in  the  return  of  these  men.  In  1862,  when 
Mr.  Lincoln  was  being  severely  attacked,  Mr.  Dana 
had  the  good  judgment  to  appreciate  the  great  quali 
ties  of  Lincoln,  and  stood  up  in  his  defense  at  the 
Worcester  Republican  Convention. 

As  to  his  arguments  that  changed  the  law  of  colli 
sions  at  sea,  and  the  shifting  of  the  burden  of  proof 
in  criminal  cases,  one  sees  at  bottom  the  sound, 
practical  common  sense  leading  to  conclusions,  which 
no  mere  logic  can  account  for.  At  the  beginning  of 
the  reconstruction  period,  he  showed  that  we  must 
carry  out  the  purposes  for  which  the  war  was  fought; 
and  in  his  "Grasp  of  War"  speech  showed  the  prhir 
ciples  upon  which  that  could  be  done  under  our 
Constitution.  It  was  very  easy  then  to  be  misled  into 
all  sorts  of  technical  and  subtle  reasoning;  but  Mr.  ^ 
Dana  had  the  good  sense  and  sound  judgment  to  con 
strue  the  Constitution  so  as  to  allow  unusual  powers 
in  unusual  circumstances  as  to  which  that  instrument 
was  silent.  At  that  time,  he  had  the  good  sense  to  see 
that  the  freedmen  should  be  granted  the  franchise 
only  on  educational  and  property  qualifications,  and 
to  make  a  clear  distinction  between  social  or  race 
equality,  in  which  he  did  not  believe,  and  equality  of 
political  rights  under  the  law.  It  was  a  certain  sound 

1  See  letter  of  Adams  to  Seward,  Dec.  27,  1861,  Diplomatic  Corre 
spondence,  1861-62,  p.  13,  and  Dana's  Note  to  Wheaton,  pp.  644-649. 


44  RICHARD  HENRY  DANA,  JR. 

judgment  that  made  Mr.  Dana  espouse  the  repeal  of 
the  usury  laws  in  Massachusetts. 

Many  political  reforms  of  uncertain  value  have 
been  urged  with  great  vigor,  and  others  of  only  sec 
ondary  importance.  Such  do  not  go  to  the  root  of 
the  evils,  nor  affect  the  motives  which  govern  the 
actions  of  men.  In  "Points  in  American  Politics," 
written  in  1876,1  Mr.  Dana  showed  his  sound  sense 
in  selecting  for  presentation  the  really  urgent  needs 
of  our  country.  He  started  off  by  laying  down  the 
fundamental  principle  of  all  civic  reform  in  the  propo 
sition  that  frauds  in  government  will  always  be  found 
wherever  affairs  are  controlled  by  human  beings; 
''but  the  extent  of  the  frauds  will  depend  upon  the  temp 
tations  offered." 

This  principle  he  proceeded  to  apply  to  the  manner 
of  electing  the  President  of  the  United  States.  Presi 
dential  electors,  he  showed,  are  allotted  to  each  state 
and  chosen  by  the  state  at  large;  consequently  the 
area  for  the  operation  of  a  single  fraud  is  the  entire 
state,  and  it  may  determine  the  choice,  not  of  one 
elector,  but  of  thirty  or  forty,  which,  taken  from  one 
party  and  added  to  the  other,  might  make  a  differ 
ence  of  sixty  or  eighty  in  the  Electoral  College  of  some 
four  hundred.  In  this  article,  Mr.  Dana  advocated 
the  election  by  Congressional  districts,  each  district 
electing  one  presidential  elector,  so  as  to  confine  the 
area  of  a  single  fraud  to  the  one  district,  and  so  deter 
mine  not  forty,  but  only  one  electoral  vote,  and  thus 
reduce  the  temptation  to  invest  much  capital,  labor, 
or  risk  in  that  kind  of  fraud.  The  sound  sense  of  this 
is  quite  generally  acknowledged. 

Another  application  of  the  general  principle  he 

>^i  Published  in  the  North  American  Review,  January,  1877. 


INTRODUCTORY   SKETCH  45 

made  to  the  presidential  tenure  of  office.  The  four- 
year  term  of  our  national  executive,  with  the  right 
of  reelection,  lays  the  president  open  to  the  tempta 
tion  of  manoeuvring  for  renomination  and  reelection; 
and  Mr.  Dana  advocated  a  longer  term  of,  say  six 
or  seven  years,  and  ineligibility  afterwards,  as  re 
moving  the  temptation  and  yet  giving  a  president 
time  in  which  to  carry  out  his  policies.  This  same 
arrangement,  he  showed,  would  also  reduce  the  fre 
quency  of  the  exciting  and  unsettling  process  of 
"king-making,"  with  its  consequent  partisan  activi 
ties  in  our  republic. 

Mr.  Dana  also  showed  the  enormous  temptations  to 
use,  for  partisan  and  personal  purposes,  the  unlimited 
power_o^appointment  and  removal  over  the  one  hun 
dred  thousanoT  Tederal  office-holders,  as  they  then 
numbered,  with  their  united  salaries  of  over  one  hun 
dred  millions  a  year.  He  showed  how  fidelity  to  the 
political  and  electioneering  service  of  the  member  of 
Congress  procured  appointment;  how  this  made  the 
employees  of  the  custom-house  and  post-office  "the 
praetorian  guards  and  corps  of  janissaries  for  congress 
men,  paid  from  the  public  treasury";  how  to  the 
fight  for  the  spoils  of  office  was  attributable  much  of 
the  "corruption  of  those  various  demoralizing  labors 
known  by  the  names  of  pipe-laying,  log-rolling,  cap 
turing  and  managing  of  caucuses  and  conventions," 
and  its  bad  effects  on  the  members  of  Congress :  — 

"It  nurses  a  love  of  power  over  individuals,  it 
accustoms  them  to  look  to  the  selfishness  of  men, 
their  fears  and  their  cupidity,  as  the  sources  of  their 
own  influence  and  the  means  of  their  advancement. 
It  occupies  a  large  portion  of  their  time  to  the  exclu 
sion  of  their  proper  public  service.  It  allows  them  to 


46  RICHARD  HENRY  DANA,  JR. 

believe  that  their  reelection  or  promotion  depends 
more  upon  the  manner  in  which  they  have  managed 
their  patronage  than  upon  the  part  they  have  taken 
and  the  labors  they  have  performed  in  the  service 
of  the  nation." 

This  was  written  before  the  civil-service-reform 
addresses  of  George  William  Curtis.  The  principle  has 
never  been  better  stated.  To  remove  this  great  temp 
tation,  with  its  consequent  evils,  Mr.  Dana  suggested 
civil-service  reform,  which  he  had  long  advocated  in 
its  days  of  unpopularity,  and  which,  although  applied 
to-day  to  only  about  two  thirds  of  our  enormous  fed 
eral  service  of  nearly  three  hundred  and  fifty  thou 
sand  places,  has  done  so  much  to  remove  those  temp 
tations  and  evils. 

In  this  article,  he  exposed  the  temptation  to  use  the 
United  States  troops  in  the  South  for  the  interests  of 
the  Republican  party,  and  though  himself  an  ardent 
Republican,  strongly  urged  the  withdrawal  of  the 
federal  troops  months  before  President  Hayes  took 
that  remarkable  and  patriotic  action. 

Lastly,  if  not  too  much  an  anti-climax  after  subjects 
of  national  importance,  let  me  mention  a  purely  local 
matter,  --  that  of  making  the  Charles  River  at  Bos 
ton  a  great  water  park.  Mr.  Dana's  interest  in  the 
sea  led  him  to  devote  much  time  and  thought  to  Bos 
ton  Harbor,  and,  as  a  corollary,  to  the  Charles  and 
Mystic  rivers  flowing  into  it.  When  plans  were  being 
considered  for  the  layout  of  the  streets  in  the  Back 
Bay  district,  before  any  of  the  section  west  of  the 
Public  Garden  had  been  filled  in,  he  advocated  a  bou 
levard  along  the  water  front  of  the  Charles  River 
Basin,  with  houses  fronting  over  this  and  looking 
towards  the  river.  That  plan  was  defeated  by  land- 


INTRODUCTORY  SKETCH  47 

holding  interests  which  saw  a  chance  to  crowd  in  more 
building  lots  by  another  scheme.  Like  untutored 
farmers  and  fishermen,  Boston  backed  its  houses  on 
its  best  view. 

Afterwards,  in  1875,  he  urged  with  great  force,  as 
the  next  best  plan,  filling  in  behind  the  Beacon  Street 
houses  next  to  the  river,  a  space  sufficient  for  an  ave 
nue,  grass  and  shrubbery,  in  place  of  what  he  called 
"Scavenger  Alley,"  that  narrow,  muddy,  rutty  pas 
sage,  which,  with  its  tin  cans,  ash  barrels  and  waste- 
paper,  disfigured  the  margin  of  the  river  for  so  long, 
to  the  disgrace  of  Boston's  good  taste  and  public 
spirit. 

Now,  after  thirty-five  years,  Scavenger  Alley,  or 
Boston's  "Rotten  Row,"  as  it  has  sometimes  been 
called,  has  been  replaced  by  a  river  park  somewhat 
like  Mr.  Dana's  "next  best  plan."  But  now  that  we 
have  this  river  park,  the  public  sees  only  the  backs 
of  the  houses  adjoining  it.  How  much  better  would 
have  been  the  first  scheme  which  Mr.  Dana,  with  his 
sound  judgment  and  wise  forethought,  so  earnestly 
urged,  and  which  now  we  can  never  have ! 

I  would  also  say  a  word  as  to  his  unusual  powers 
in  debate.  I  shall  give  two  examples,  —  the  repeal 
of  the  usury  laws  in  Massachusetts  and  the  support 
of  Lincoln,  —  of  which  I  have  just  spoken.  As  to  the 
first,  there  was  then  no  organization  of  business  men, 
no  special  effort  outside  the  legislature  for  the  repeal 
of  these  laws.  It  was  wholly  the  influence  of  a  single 
debate  by  Mr.  Dana  that,  to  the  surprise  of  the  public, 
brought  about  the  result.  As  to  the  latter,  the  late 
Senator  Hoar  has  repeatedly  stated,  with  great  em 
phasis,  that  Mr.  Dana's  support  of  Lincoln  at  the 
Massachusetts  Republican  Convention  in  1862,  was 


48  RICHARD  HENRY  DANA,  JR. 

the  most  remarkable  instance  he  ever  knew  of  a  large 
body  of  men  who  had  publicly  committed  themselves 
to  a  course,  being  persuaded  by  the  argument  of  a 
single  man  to  change  their  minds  and  do  the  reverse.1 

Notwithstanding  Mr.  Dana's  natural  ability,  care 
ful  preparation,  sound  sense,  eloquence,  and  hard 
work,  he  did  not  achieve  the  high  political  career  for 
which  he  was  undoubtedly  ambitious.  His  friend, 
Judge  Hoar,  thought  his  "Episcopalianism"  stood 
in  his  way,  and  that  he  would  have  done  better  if 
he  had  been  a  Congregationalist,  —  one  might  add, 
still  better  if  a  Methodist.  Some  of  his  friends 
thought  him  at  times  too  "aristocratic."  To  this, 
his  near-sightedness,  inability  to  recognize  faces 
quickly,  a  certain  dignity  of  bearing,  and  his  high- 
mindedness  lent  force;  though,  in  so  far  as  it  existed, 
it  was  strangely  inconsistent  with  his  thorough  de 
mocracy  concerning  human  rights,  his  siding  with 
the  oppressed  with  such  ardor  and  courage,  and  his 
condemnation  and  even  ridicule  of  aristocratic  tend 
encies  or  reliance  on  family  name  and  prestige  in  a 
country  like  ours.  A  little  more  of  this,  and  of  his 
kindness  and  friendship  for  the  humble,  I  shall  set 
forth  in  the  Introduction  to  the  "Letters  from  a 
Father  to  a  Son." 

Sometimes  he  was  impolitic  in  his  open  denuncia 
tion  of  what  was  low  and  mean  in  public  life  in  gen 
eral  and  in  public  men  in  particular,  and  he  was  often 
put  forward  to  say  the  word  that  others  shrank  from 
speaking.  It  may  be  well  to  give  one  case,  as  illus 
tration,  which  he  related  to  me.  Judge  Clifford  had 

1  The  reversal  was  complete  with  the  mass  of  the  convention,  but  the 
leaders  who  were  on  the  committees,  by  adroit  tactics,  partially  thwarted 
Mr.  Dana  and  the  convention  itself. 


INTRODUCTORY  SKETCH  49 

been  made  Justice  of  the  United  States  Supreme 
Court  from  the  New  England  district,  and  had  the 
appointment  of  a  United  States  Commissioner,  a 
sort  of  minor  judge.  Ability  in  that  position  was  of 
the  greatest  importance,  and  the  Bar  Association 
had  two  or  three  candidates  to  suggest;  but  it  learned 
that  the  Judge  had  a  candidate  of  his  own,  who  did 
not  have  the  confidence  of  the  Bar.  Mr.  Dana  was 
chairman  of  the  committee  appointed  to  see  Judge 
Clifford.  It  was  a  delicate  matter.  No  lawyer  prac 
ticing  before  the  United  States  Courts  could  well 
afford  to  incur  the  ill-will  of  so  powerful  a  person  as  a 
Justice  of  the  United  States  Supreme  Court.  In  the 
interview,  Judge  Clifford  replied  that  he  would  be 
glad  to  please  the  Bar  of  New  England,  but  said, 
"Gentlemen,  you  should  know  that  when  my  con 
firmation  in  the  United  States  Senate  was  long  in 

doubt,  Senator came  to  my  support  and  turned 

the  tide  in  my  favor.  He  wants  this  man  appointed, 
and  I  must  do  as  he  wishes."  To  this  principle  of 
appointment  my  father  felt  obliged  to  make  a  pro 
test.  He  afterwards  felt  that  Judge  Clifford  never 
quite  forgave  him. 

It  may  be  interesting  to  know  what  Mr.  Dana  him 
self  regarded  as  the  chief  stumbling-block  to  his 
public  career.  He  believed  it  was  the  existence  of  the 
"spoils"  system  in  American  politics.  He  could  not 
reconcile  himself  to  the  idea  of  securing  persoital 
success  in  politics  by  the  use  of  public  patronagq^ 
nor  could  he  acquiesce  in  indirect  participation  of  this 
breach  of  trust  by  others.  His  journals  have  frequent 
references  to  the  evils  of  the  system.  "The  state 
of  mind  of  poor  Cheever,"  the  capable  lighthouse- 
keeper  at  the  Isles  of  Shoals,  in  August,  1843,  anxious 


50  RICHARD  HENRY  DANA,  JR. 

to  keep  his  place,  but  not  knowing  which  way  to  turn 
in  the  political  chaos,  is  well  told  in  the  Life,1  a  case 
"which  illustrated  the  unhappy  state  of  our  country," 
as  Dana  says.  Later  in  the  same  year,  Cheever  calls 
on  Mr.  Dana  for  help,  having  been  removed  without  a 
hearing  from  his  means  of  living.  Mr.  Dana,  in  the 
journal,  describing  the  abject  state  of  mind  of  the 
distracted  man,  writes  that  Cheever  "would  support 
the  administration  if  they  would  give  him  his  place," 
and  ends  the  account  with  the  remark,  "I  detested 
v%?tljis  vicious  system,  which  is  corrupting  the  morals 
of  the  republic."  In  1854  he  writes  out  a  statement, 
made  by  Sumner,  of  the  secret  sessions  of  the  Senate : 

"Since  I  have  been  in  the  Senate,  some  thousands 
of  nominations  have  been  acted  upon,  and  whether 
confirmed  or  rejected,  the  test  openly  and  unblush- 
ingly  put  now,  in  debate,  by  Senators,  is  the  test  of 
fidelity  to  the  slave  power.  At  first  it  was  the  Fugi 
tive  Slave  Law.  Now  it  is  Nebraska.  It  is  not  enough 
that  he  be  of  the  ruling  party,  the  least  suspicion  of 
infidelity  to  the  Southern  policy  of  the  party  is  fatal. 
The  most  minute  and  gossiping  evidence  is  gone  into, 
on  each  side,  pro  and  con,  to  prove  or  throw  in  doubt 
the  position  of  the  nominee,  but  the  fitness  for  the 
office  is  not  alluded  to.  Only  in  two  instances,  posi 
tively,  only  in  two  instances,  can  I  remember  that 
the  moral  character  or  fitness  of  the  nominee  have 
been  alluded  to." 

Later,  he  quoted  another  remark  by  Sumner,  made 
after  the  Republican  party  had  been  long  in  control. 
Fidelity  to  the  slave  power  was  no  longer  the  test, 
but  there  was  still  the  same  neglect,  in  executive- 
session  debate,  of  moral  character  and  fitness.  In 

1  Vol.  i,  pp.  91-93. 


INTRODUCTORY   SKETCH  51 

"Points  in  American  Politics,"  already  referred  to, 
Mr.  Dana  speaks  of  civil-service  reform  as  going 
"deeper  into  the  political  life  of  the  nation  than  any 
other"  matter  of  "legislative  or  executive  policy." 

Those  were  the  days  when  the  advocacy  of  civil- 
service  reform  required  moral  courage.  It  was  before 
the  formation  of  any  civil-service  reform  association, 
and  such  advocacy  was  an  obstacle  to  the  advocate's 
political  preferment.  There  were  in  public  life  a  few 
men  of  high  character;  but  even  they,  in  order  to 
keep  their  positions,  had  to  aid  in  all  the  "pipe- 
laying"  and  "fence-building"  of  the  local  "ma 
chines,"  by  recommending  removals  and  appoint 
ments  in  office  to  suit  the  "boys."  If  the  "machine" 
which  really  dictated  nominations  for  elective  offices 
in  Massachusetts  in  those  days,  as  it  still  does  in 
some  other  states  to-day,  felt  that  a  man  really  meant 
to  refuse  to  give  the  offices  to  the  workers,  then,  in 
the  words  of  Professor  Child,  referring  to  my  father, 
"they  would  have  none  of  him."  Preaching  reform 
of  the  spoils  methods  before  election  "spread  a  cold 
ness  over"  the  "professional  politicians,"  very  like 
the  proverbial  effect  of  a  sermon  against  stealing 
chickens  on  a  darky  meeting  in  the  South  just  before 
Christmas. 

In  the  Hayes-Tilden  campaign,  Mr.  Dana  made  a 
political  speech  in  Cambridge.  He  held  his  large  audi 
ence,  with  men  standing  in  the  back  passages  and  half 
way  up  the  aisles,  through  nearly  two  hours.  At  times 
you  could  hear  a  pin  drop,  and  yet  the  address  was 
dispassionate,  with  a  few  passages  of  what  is  called 
"eloquence."  Many  who  had  come  in  doubt  left  as 
strong  supporters  of  Hayes.  Some  Cambridge  Re 
publicans  urged  that  Mr.  Dana  be  asked  to  repeat 


52  RICHARD  HENRY  DANA,  JR. 

this  speech  all  over  the  state;  but  he  had  spoken  too 
much  and  too  earnestly  about  civil  service  reform,  and 
so  the  request  never  came  from  the  managers. 

Even  those  great  leaders,  who  were  too  high-minded 
to  have  inaugurated  such  a  system,  and  who  disliked 
it,  yet  acquiesced  in  it,  and  failed  to  denounce  it. 
Naturally  they  were  somewhat  bitter  toward  civil  ser 
vice  reformers,  who,  in  attacking  the  system,  attacked 
what  these  leaders  had  taken  part  in  and  profited 
by.  I  well  remember,  in  1888,  going  to  one  of  these 
public  men,  who  was  a  real  civil  service  reformer  at 
heart,  and  who  supported  the  cause  when  it  came 
to  a  vote  in  Congress.  I  had  been  intrusted  by  the 
National  Civil  Service  Reform  League  with  the  task 
of  getting  a  good  plank  on  the  merit  system  inserted 
in  the  Republican  platform.  This  public  man  was  a 
member  of  the  Committee  on  Resolutions  of  the 
National  Republican  Convention,  then  being  held  at 
Chicago.  The  words  "civil  service  reform"  were  to 
him,  however,  like  a  red  rag  to  a  bull.  He  spent  the 
whole  twenty  minutes  he  had  to  spare  in  most  rabid 
denunciations  of  George  William  Curtis  and  his  whole 
flock.  I  could  not  get  in  a  word  "edgewise."  He  did 
not  even  look  at  my  draft,  and  I  had  to  go  to  a  young 
delegate,  not  then  prominent,  Mr.  Samuel  W.  McCall, 
now  M.  C.,  and  he  managed  to  get  the  plank  adopted. 
Indeed,  one  of  the  incentives  for  attacking  the  spoils 
system,  one  of  the  objects  mentioned  in  civil  service 
reform  literature,  is  that,  by  abolishing  patronage,  we 
abolish  that  which  keeps  out  of  politics,  by  the  very 
necessity  of  the  case,  many  of  the  high-minded  men 
we  most  desire  to  have  represent  us. 

Had  Mr.  Dana's  lot  fallen  in  another  country, 
where,  or  in  this  country  at  a  time  when,  the  spoils 


INTRODUCTORY   SKETCH  53 

system  did  not  prevail,  his  character,  ability,  cour 
age,  eloquence,  sound  sense,  diligence,  and  attain 
ments  might  have  had  a  better  chance  to  bring  him 
that  public  career  for  which  his  friends  have  testified 
they  thought  him  so  eminently  fit. 

Yet  his  public  career  was  not  wholly  wanting  in 
honors.  President  Lincoln,  through  his  Secretary  of 
State  Seward,  in  the  most  flattering  terms  offered 
him  the  position  of  Secretary  of  the  Navy,  on  the 
supposition  that  Gideon  Welles  was  about  to  resign. 
Mr.  Welles  reconsidered  his  project  of  resigning,  and 
the  appointment  of  Mr.  Dana  was  not  made,  nor 
could  the  knowledge  of  the  offer  be  published  at  the 
time.  Mr.  Dana  took  a  conspicuous  part  in  the 
famous  Constitutional  Convention  of  1853.  Of  his 
work  in  that  Convention,  Mr.  Adams  says  in  the 
Memoir:  "There  was  no  man  in  the  Convention  who 
rose  more  rapidly  or  into  greater  prominence  as  a 
debater  than  Mr.  Dana."  He  was  offered  a  nomina 
tion  to  Congress,  which  meant  an  assured  election, 
early  in  his  career;  but  he  had  to  refuse  it  for  want  of 
adequate  means,  which  he  felt  a  congressman  should  | 
have  in  order  to  maintain  his  independence. 

He  had,  as  he  said,  "the  privilege  of  being  counsel 
for  every  fugitive  slave  and  for  most  of  those  who 
were  indicted  for  rescue";  and  the  reputation  that 
he  gained  in  the  Prize  Causes,  already  referred  to, 
and  the  taking  part  in  establishing  the  policy  of  the 
United  States,  as  shown  in  the  note  to  the  Prize 
Causes,  gave  him  great  satisfaction. 

While  in  the  State  Legislature  for  two  years,  he 
made  one  of  the  great  speeches  in  the  history  of  that 
body.  It  was  on  the  repeal  of  the  usury  laws.  He  was 
made  chairman  of  the  Judiciary  Committee,  which 


54  RICHARD  HENRY  DANA,  JR. 

was  the  position  of  the  leader  of  the  House,  after  only 
one  year's  service.    He  was  offered  the  position  of 
Minister  to  Russia,  and  a  seat  on  the  Supreme  Judi 
cial  Court  of  Massachusetts,  both  of  which  he  de 
clined.   He  was  chosen  counsel  for  the  United  States 
in  the  matter  of  the  prosecution  of  Jefferson  Davis 
for  treason.    In  this  he  took  the  position,  and  so 
advised  the  government,  that  it  was  unwise  to  pro 
ceed,  partly  because  it  would  be  impossible  to  con 
vict  before  a  jury  drawn  from  any  of  the  scenes  of 
Mr.    Davis's    overt    acts,  namely,  the    Confederate 
States,  without  excluding  every  man  with  secession 
sympathies,  which  in   effect   would   look  very  like 
packing  the  jury  with  those  of  Northern  feelings ;  while 
to  try  him  in  the  North,  for  example  in  the  State  of 
Pennsylvania,  on  the  ground  that  some  of  the  troops 
of  which  he  was  the  nominal  commander-in-chief  had 
invaded  that  state,  would  look  very  like  changing  the 
venue  to  secure  conviction;  that  to  punish  one  man, 
though  a  leader,  and  let  others  off  who  were  as  much 
if  not  more  to  blame  for  secession,  would  create  a 
feeling  of  unfairness ;  and  mainly,  he  took  the  broader 
ground  that  our  policy  should  be  to  reunite  the  coun- 
Jry  into  one  lasting  union,  and  for  this,  a  magnani 
mous  course  of  pardon  was  more  effective  than  pun 
ishment.    In  this  way,  his  advice  was  against  his 
chance  to  increase  a  reputation  which  the  trial  of 
such  a  great  national  cause  would  have  done. 

He  was  also  selected  as  chief  counsel  for  the  United 
States  in  the  Fisheries  Commission,  held  at  Halifax 
in  1877,  being  a  part  of  the  arbitration  arranged  for 
under  the  Alabama  Treaty.  He  undertook  this  case 
at  great  disadvantage,  as  the  Treaty  itself,  as  appears 
in  the  notes  to  Mr.  Dana's  argument  before  the  Hali- 


INTRODUCTORY  SKETCH  55 

fax  Commission,  had  given  away  the  chief  part  of 
our  case,  and  prevented  our  proving  rights  to  which 
he  believed  we  were  really  entitled,  and  which,  if 
proved,  would  have  greatly  cut  down  the  Canadian 
claims. 

Though  Mr.  Dana's  nomination  for  Minister  to  the 
Court  of  St.  James  by  President  Grant  was  not  con 
firmed  in  the  Senate,  yet,  as  shown  in  the  "Letters 
from  a  Father  to  a  Son,"  it  was  confirmed  by  public 
opinion  of  the  leading  people  throughout  the  country. 

As  to  his  professional  career,  it  is  told  in  the  Life 
how  successful  Mr.  Dana  was  as  to  the  number  of 
cases  he  tried  in  court,  and  the  proportion  of  verdicts 
he  obtained;  and  from  the  point  of  view  of  income, 
how  frequently,  though  not  always,  he  was  on  the 
side  of  the  poor  man,  the  sailor,  or  the  fugitive  slave, 
and  how  his  attitude  on  the  slave  question,  though 
he  was  not  an  extremist,  not  an  Abolitionist,  pre 
vented  his  having  many  rich  and  influential  clients; 
how,  for  example,  an  article  had  appeared  in  the 
papers  urging  Boston  merchants  not  to  retain  him; 
yet  the  one  critical  point  in  his  professional  career 
is  not  set  out  in  the  Life.  This  was  told  me  by  the 
late  Mr.  Lewis  S.  Dabney,  partner  of  Mr.  Dana  after 
his  resignation  as  United  States  District  Attorney, 
on  the  inauguration  of  President  Andrew  Johnson's 
famous  "bread-and-butter  policy."  At  this  time, 
in  1866,  all  the  opposition  to  Mr.  Dana  from  the 
wealthy  merchants  on  account  of  his  anti-slavery 
principles,  had  vanished.  The  tide  of  sentiment  dur 
ing  the  Civil  War  had  turned  in  Mr.  Dana's  direc 
tion.  His  great  success  in  the  Prize  Causes,  and  the 
economic  and  able  administration  of  his  office,  as  well 
as  his  court  work  as  United  States  District  Attorney, 


56  RICHARD  HENRY  DANA,  JR. 

had  brought  him  still  more  prominently  forward  at 
the  bar.  At  this  time,  Mr.  Dabney  said,  the  largest 
cases  in  Boston  were  brought  to  him;  but,  at  this 
point  of  his  life,  having  saved  a  moderate  sum  of 
money,  and  feeling  that  this  was  his  chance  to  begin 
the  political  career  he  craved,  he  decided  to  enter 
the  Massachusetts  Legislature.  To  his  two  years' 
work  there,  he  devoted  his  best  talents  and  almost 
the  whole  of  his  time  and  thought.  Case  after  case, 
involving  large  amounts,  was  turned  away  from  the 
office  because  Mr.  Dana  could  not  attend  to  it.  The 
result  but  illustrates  the  saying  that  "Law  is  a  jeal 
ous  mistress,  and  the  one  thing  she  will  not  forgive 
is  attention  to  another."  Big  cases  like  those  he  re 
fused,  and  such  as  would  have  given  him  one  of  the 
largest  incomes  at  the  bar,  did  not  come  to  him  again 
when  he  went  back  to  his  office  after  these  two  years 
in  the  legislature;  indeed,  it  took  several  years  of 
heartrending  waiting  before  he  attained  his  former 
annual  income.  He  managed,  however,  during  the  rest 
of  his  life,  to  save  enough  property  indirectly,  by  add 
ing  to  and  greatly  increasing  the  value  of  a  trust  fund, 
to  leave  his  widow  a  good  home  and  a  fair  income. 

As  to  relaxation  and  recreation,  Mr.  Dana  was 
indeed  going  at  a  killing  pace  all  through  his  early 
and  middle  life,  even  forgetting  at  times  to  eat  his 
noon-day  meal.  Let  me  give  an  account  of  one  day's 
work,  not  told  in  the  Life,  found  in  his  journal  under 
date  of  March  8,  1853: — 

"Monday  night  (7th)  I  lectured  at  N.  Bridgewater. 
After  an  early  breakfast  left  for  Boston  where  I  ar 
rived  soon  after  9,  argued  Rand  and  Mather  before 
the  full  bench  Sup.  Ct.,  closing  at  2  o'cl'k,  without 
dining  took  &/%  train  for  Dedham,  and  began  the 


INTRODUCTORY   SKETCH  57 

trial  of  Bigelow  and  Wood  immediately  on  my  arrival 
—  Immediately  on  adjournment  of  the  Court  took 
cars  for  Boston  and  thence  coach  to  Charlestown  and 
lectured  1^  on  Burke,  returned  to  Boston,  had  an 
interview  with  Dr.  Townsend  who  is  a  witness  in  White 
v.  Braintree  and  thence  to  Cambridge  —  all  this  time 
eating  nothing  but  a  few  figs  and  a  sandwich  in  the 
coach  —  a  pretty  good  day's  work!" 

He  had  less  of  what  is  called  "amusement"  than 
most  men;  but,  it  must  be  remembered,  he  enjoyed 
intellectual  occupation  more  than  most  people,  and 
got  relaxation  from  what  would  appear  hard  work 
to  others,  while  through  it  all  he  had  a  hopeful, 
buoyant  nature,  a  great  sense  of  humor,  and  was 
extremely  fond  of  his  home.  In  the  midst  of  a  hot 
summer,  with  cholera  epidemic  in  Boston,  just  hav 
ing  lost  a  hard-fought  case,  "reserving"  only  "a 
point  of  law,"  having  just  been  ill  with  symptoms  of 
cholera,  living  and  spending  his  nights  in  town,  and 
tied  close  to  his  office,  with  plenty  of  cause  for  gloom, 
see  how  joy  triumphs.  In  his  journal  of  August  17, 
1849,  he  writes:  — 

"Have  entirely  recovered  and  am  remarkably  well 
in  the  midst  of  so  much  sickness.  For  which  God  be 
praised.  This  general  sickness  and  mortality  has 
impressed  upon  my  mind  the  frailty  and  uncertainty 
of  human  life,  the  certainty  of  death  and  eternity.  ^ 
trust  it  has  had  a  proper  effect  upon  my  life  and  my 
habits  of  mind  and  thought.  How  true  are  the  melan 
choly  words  of  Hamlet : '  If  it  be  now,  't  is  not  to  come. 
If  it  be  to  come,  't  will  not  be  now.  If  it  be  not  now, 
it  will  come,  the  readiness  is  all ! '  [evidently  quoting 
from  memory,  and  then  ends]  How  much  I  have  to 
make  life  desirable!  Has  any  man  more?" 


58  RICHARD  HENRY  DANA,  JR. 

As  I  think  of  his  buoyancy  and  joy  in  living  and 
working,  I  say,  in  the  words  of  George  Meredith, 
descriptive  of  Diana  of  the  Cross  ways,  "A  linnet 
sang  in  his  breast,  an  eagle  lifted  his  feet." 

One  of  Mr.  Dana's  great  powers  was  that  of  a  ra 
conteur;  but  he  also  had  ready  and  spontaneous  wit 
and  repartee.  The  tradition  of  his  presiding  at  the 
Phi  Beta  Kappa  dinners  in  the  early  seventies,  and 
showing  those  qualities  in  rare  degree,  lasted  for 
many  years.  As  late  as  1909,  several  older  members 
spoke  of  it  to  me  at  the  dinner.  I  well  remember  a 
dinner  of  the  Lawyers'  Club  at  his  house,  No.  361 
Beacon  Street,  about  1874  or  1875.  There  were  gath 
ered  the  leaders  of  the  Boston  Bar,  and  I,  a  law-stu 
dent  at  the  time,  was  admitted  as  a  guest.  I  remem 
ber  how  his  face  lighted  up,  the  quick  repartee,  the 
lively  humor,  the  laughter-giving  wit,  with  which  he 
enlivened  his  end,  and  not  infrequently  the  whole 
of  the  table.  He  was  noted  for  his  laughter.  I  went 
once  to  see  the  elder  Sothern  as  Lord  Dundreary,  and 
sat  in  the  gallery.  Some  one  on  the  floor  led  the  bursts 
of  laughter  with  quick  appreciation  of  the  points. 
This  was  so  marked  that  I  looked  to  see  who  it  was, 
and  found  it  was  my  father.  Indeed,  his  sense  of 
humor  sometimes  struck  him  on  most  incongruous 
occasions,  as  at  funerals  and  the  like.  While  at  home, 
he  was  the  life  of  the  family,  and  many  of  his  friends 
have  said,  as  I  have  felt,  that,  long  after  his  death, 
when  they  heard  a  funny  story  or  a  bit  of  quick  re 
partee,  as  well  as  some  important  public  news,  their 
thought  was,  "I  must  tell  this  to  Mr.  Dana." 

During  one  period  only,  when,  in  1869-70,  he  was 
suffering  from  a  combination  of  ill-health,  caused  by 
sewer-gas  poison  during  the  days  when  people  ad- 


INTRODUCTORY  SKETCH  59 

mitted  the  anacondas  of  drains  into  their  houses  with 
out  making  them  harmless  with  traps  and  vents,  and 
feeling  the  worries  from  a  smaller  professional  in 
come  than  he  had  been  accustomed  to,  was  he  de 
pressed.  He  fully  recovered  his  health  and  spirits, 
however,  by  a  voyage  to  Scotland  and  back,  in  the 
summer  of  1870. 

As  Mr.  Adams  states  in  the  Life,  Mr.  Dana  has 
been  called,  by  some  of  his  wisest  friends,  a  man  of 
genius.  He  certainly  was  capable  of  great  visions,  vy 
without  being  visionary,  and  to  his  ideals  he  devotedV^- 
at  times,  "infinite  pains."  The  night  after  the  flog-' 
ging  of  his  two  fellow-sailors  off  San  Pedro,  Cali 
fornia,  Mr.  Dana,  lying  in  his  berth,  "vowed  that, 
if  God  should  ever  give  me  the  means,  I  would  do 
something  to  redress  the  grievances  and  relieve  the 
sufferings  of  that  class  of  beings  with  whom  my  lot 
has  been  so  long  cast."  This  vow  he  carried  out  in  no 
visionary  scheme  of  mutiny  or  foolish  "paying  back" 
to  the  captain,  but  by  awakening  a  "strong  sym 
pathy"  for  the  sailors  "by  a  voice  from  the  fore 
castle,"  in  his  "Two  Years  Before  the  Mast,"  a  book 
which  has  had  much  to  do  with  securing  the  enact 
ment  of  laws  against  flogging  seamen,  overworking 
and  underfeeding  them,  and  the  like,  all  which  ex 
periences  he  had  so  well  portrayed.  After  his  "Two 
Years  Before  the  Mast,"  with  much  the  same  pur 
pose  he  wrote  "The  Seaman's  Friend,"  setting  forth 
the  rights  of  sailors,  as  well  as  their  duties,  a  book, 
by  the  way,  which  had  been  reprinted  in  England 
under  the  title  of  "Seaman's  Manual,"  and  which  I 
found  in  1875-76  was  in  use  by  the  Admiralty  judges 
and  in  the  Navy  of  that  country. 

Mr.  Dana  had  a  vision  of  manhood  freedom,  but 


60  RICHARD  HENRY  DANA,  JR. 

he  was  not  an  Abolitionist.  He  had  no  visionary  plans 
of  arming  the  negro  slaves,  of  opposition  to  the  Con 
stitution,  that  "compact  with  the  devil,"  as  some 
extremists  called  it,  nor  of  secession  from  the  slave 
states.    He  favored  rather  the  abolition  of  slavery 
by  degrees,  as  recommended  by  Washington  in  his 
letter  to  Lafayette  of  May  10,  1786,  or  by  gradual 
purchase,  as  suggested  by  President  Lincoln.  He  had 
a  vision  of  one  great  and  united  country,  and  to  se 
cure  this,  in  1861,  he  made  a  speech  at  Manchester, 
New  Hampshire,  repeated  at  Cambridge,  which  at 
tracted   public   attention   throughout   the   country. 
At  that  time,  the  slave  states  were  on  the  verge  of 
secession,  and  he  urged  every  reasonable  concession, 
even  the  direct  acknowledgment  of  rights  of  slavery 
in  the  Constitution,  and  the  enactment  of  a  reasonable 
fugitive  slave  law;  indeed,  every  concession  to  the 
slave  power  except  the  forcible  extension  of  slavery 
in  free  soil  and  the  unjust  provisions  of  the  fugitive 
slave  law  then  in  force.   His  vision  of  justice  was  up 
set  by  the  barbarities  of  this  same  fugitive  slave  law; 
but  he  was  not  carried  away  by  visionary  schemes 
of  punishing  all  those  who  carried  out  what  the  Su 
preme  Court  had  declared  to  be  the  law.  On  the  con 
trary,  he  defended  Judge  Loring  against  the  petition 
to  have  him  removed,  on  account  of  his  decision 
against  fugitive  slaves,  as  more  consistent  with  the 
vision  of  the  reign  of  law,  the  only  safeguard  of  true 
liberty.  After  the  war  was  ended,  he  had  a  vision  of 
securing  the  results  of  the  war,  and  this  he  outlined 
in  the  first  scheme  of  reconstruction  policy,  set  forth 
in  the  resolutions  which  he  drew  up  and  which  were 
accepted  at  Faneuil  Hall  July  10,  1866,  and  in  his 
speech  on  their  behalf;  but  these  contained  no  vision- 


&* 


INTRODUCTORY   SKETCH  61 

ary  plan  of  universal  negro  suffrage,  but  one  based 
only  on  property  and  education,  nor  of  death  to  all 
"traitors,"  but  of  general  self-government  and  am 
nesty  after  acceptance  of  emancipation  and  union. 

He  had  a  vision  of  long  lines  of  patriotic  and  pub-> 
lie-spirited  citizens,  who  would  follow  the  footsteps 
of  their  ancestors;  but  no  foolish  and  visionary  idea 
of  an  American  aristocracy.  He  had  a  vision  of  faith 
in  the  American  people;  but  no  fatuous  belief  that 
the  majority  was  always  wise  and  right  and  the  people 
free  from  failings;  on  the  contrary,  they  needed  leafd- 
ers  to  reason  with  them,  reforms  that  would  take 
away  special  temptations  and  dangers,  such  as  lurkecj 
in  the  spoils  system,  the  restraint  of  a  written  cont 
stitution  and  stable  laws,  interpreted  and  enforced 
by  an  independent  judiciary,  to  prevent  haste,  vio 
lence,  or  injustice  in  the  exercise  of  their  powers. 
He  had  a  splendid  vision  of  a  great  party,  acting  from 
pure  principle,  a  vision  which  he  first  saw  at  the 
Buffalo  Free  Soil  Convention  in  1848,  which  was  the 
beginning  of  the  Republican  party;  but  he  did  not 
follow  party  ties  to  an  extreme.  He  sacrificed  him 
self  as  one  of  the  first  Independents  in  politics  in  his 
hopeless  run  against  the  "regular"  candidate  of  the 
Republican  party  for  Congress  in  1868,  Benjamin  F. 
Butler,  when  Butler  stood  on  a  platform  of  paying 
the  government  bonds  in  greenbacks. 

He  had  a  vision  of  an  historic  church,  with  an  an 
cient  liturgy  consecrated  by  generations  of  use  and 
approval,  "the  united  prayers  and  praises,  the  com 
mon  worship,  the  confessions  with  the  mouth,  the 
anthems    and    ascriptions,    the    regular    reading    of  j 
Scriptures,  the  'Christian  Year'  with  its  returns  of  ' 
solemn  observances,  the  sacraments  exalted  to  their 


62  RICHARD  HENRY  DANA,  JR. 

proper  place,"  all  carried  on  with  dignity  and  rever 
ence,  and  round  which  cluster  the  tenderest  associa 
tions  of  each  devout  Christian;  but  he  had  no  sym 
pathy  with  those  who  would  restrict  the  mercies  of 
God  to  the  few  within  the  Church  of  England  and 
its  American  branch,  who  held  special  views.  While 
he  had  "no  doubt  the  Almighty  has  every  variety 
of  instruments  working  in  every  variety  of  ways  to 
secure  the  well-being  of  his  creatures,"1  neither  did 
extreme  ritual  please,  nor  the  one-man  service  satisfy 
him. 

No  doubt  Mr.  Dana's  life  was,  on  the  whole,  a  dis 
appointment  to  him;  but  he  kept  up  the  same  pluck 
with  which,  as  a  boy,  he  sprang  past  the  hesitating 
crew  of  the  Pilgrim,  and,  with  John  "the  Swede," 
lay  out  on  the  bowsprit  in  snow,  hail,  and  sleet  off 
Cape  Horn,  diving  beneath  the  great  masses  of  water 
and  holding  on  for  life,  till  they  furled  the  jib  of  their 
little  190-ton  brig.  The  pathos  of  his  life  did  not  de 
generate  into  jsg<jiuess-  He  never  for  a  moment  let 
timself  become  a  man  with  a  grievance,  no,  not  even 
on  the  loss  of  the  English  mission  in  1876,  so  well 
told  in  the  Life,  nor  at  the  "law's  delay"  before  the 
master's  report  ended  in  his  favor  the  Beach  Law 
rence  suit,  which  had  charged  him  with  plagiarism, 
nor  at  the  smallness  of  his  professional  income  at  times. 
The  letters  from  Rome,  even  to  the  last,  were  full 
of  humor  and  animation.  The  late  W.  W.  Story,  the 
sculptor,  described  to  me  a  dinner  which  he  gave  to  a 
party  of  American  friends  in  Rome  on  Christmas  Eve, 
1881,  four  days  before  my  father's  last  and  fatal  ill 
ness.  Mr.  Story  said  he  had  never  seen  surpassed  the 
wit  and  brilliancy  with  which  Mr.  Dana  led  the  con- 

1  From  the  Journal  of  1844. 


INTRODUCTORY    SKETCH  63 

versation  that  evening.  Of  the  same  dinner,  my  father 
wrote  in  a  letter  that  he  had  "  never  enjoyed  such  a 
company  more." 

Well  did  Mr.  Adams  finish  the  Biography  with  a 
letter  from  Mr.  Dana's  old  partner,  the  oracle  of 
cultivated  Boston,  Mr.  Francis  Edward  Parker, 
written  shortly  after  my  father's  death,  in  which 
is  this  sentence :  — 

"Buffeted  as  he  had  been  for  more  than  twenty 
years,  disappointed  in  every  high  ambition  of  his 
life,  fallen  on  evil  times  and  evil  chances,  how  bravely    ^ 
he  kept  his  courage!" 


II 

JOURNAL  ENTRIES  OF  CONVERSATIONS 
WITH  "UNCLE  EDMUND" 

EDMUND   TROWBRIDGE   DANA.     Born,  1779.    Died, 
1859.   Harvard,  1799. 

"  He  is  the  last  of  those  who  connected  my  youth  with  Europe 
and  art,  and  the  great  men  and  great  events  of  fifty  years  ago." 
(Journal  of  R.  H.  Dana,  Jr.,  1859.) 

CALLED  at  Uncle  Edmund's  last  evening  [Dec.  6, 
1851].  He  was  very  entertaining.  Talked  about  his 
friend  Arthur  Maynard  Walter  and  their  good  times 
together  in  London.  He  said  he  hardly  knew  which 
Walter  preferred,  the  Theatre  or  the  House  of  Com 
mons.  He  enjoyed  a  front  seat  in  the  gallery  as  much 
as  in  the  pit,  and  rubbed  his  hands  when  the  house 
filled  as  much  as  when  the  curtain  rose.  He  described 
a  debate  he  heard  on  the  bill  for  a  levy  en  masse,  when 
Bonaparte  was  at  Boulogne.  Pitt,  Fox,  Sheridan, 
Canning,  and  Windham  spoke.  Fox,  he  said,  had  a 
long  back,  was  corpulent,  with  a  narrow  upper  part 
and  wide  lower  part  to  his  head,  heavy-looking,  but 
with  fine  eyes.  His  manner  was  entirely  without 
graces,  and  his  utterance  very  rapid,  but  he  was  full 
of  illustration  and  very  interesting.  Pitt,  he  says, 
had  a  less  original  mind  than  Fox,  and  less  variety,  but 
his  manner  was  very  impressive,  his  voice  full  and 
melodious,  his  utterance  slow  and  emphatic,  with 
a  certainty  and  copiousness  of  speech  which  made 


CONVERSATIONS  WITH  UNCLE  EDMUND      65 

you  perfectly  certain  that  he  would  not  fail  or  be 
come  embarrassed  or  confused.  His  arrangement  was 
methodical,  and  he  made  every  subject  clear.  His 
moral  character  gave  him  great  weight,  and  he  was 
considered  independent  and  disinterested.  Sheridan 
looked  and  acted  like  a  theatrical  manager,  full  of 
flourish  and  graces.  He  was  particularly  severe  on 
the  late  administration  (Pitt's,  for  Addington  was 
then  premier),  and  Pitt  replied.  Sheridan  had  not 
spoken  for  a  long  time,  and  Pitt  congratulated  him 
on  his  recovery  of  his  speech,  and  said  he  had  been 
bottled  up  so  long  that  he  came  out  with  a  bounce. 
The  next  day  there  was  a  caricature,  entitled  "Un 
corking  Sherry,"  representing  Pitt  in  a  wine  vault, 
each  bottle  being  a  likeness  of  a  member,  and  Pitt 
with  a  towel  and  a  bottle  under  his  arm,  drawing  the 
cork,  the  bottle  being  Sheridan. 

Sir  William  Pulteney,  who  was  then  a  very  old  man 
and  the  largest  landholder  in  England  except  the  Duke 
of  Bedford,  attacked  Pitt's  administration,  and  said 
he  had  wasted  the  public  money,  that  the  war  was 
wrong,  and  our  allies  had  taken  our  money  and  de 
serted  us.  Pitt  replied:  "I  may  have  spent  the  pub 
lic  money  unfortunately,  possibly  unwisely,  but  not 
corruptly  or  selfishly.  The  men  who  sustained  that 
war  did  it  for  the  public  good,  not  for  personal  profit." 
And  pointing  his  long  finger  at  Sir  William,  said,  "I 
—  never  —  elbowed  —  a  -  -  tenth  —  Scotch  —  cou 
sin  into  office,"  etc.,  etc.  Sir  William  arose  in  a  rage 
and  made  a  furious,  incoherent  reply. 

Canning  had  lately  been  married,  and  spoke  in  a 
white  waistcoat  and  new  buckskin  gloves.  Uncle  E. 
said  he  saw  the  dust  fly  from  them  as  Canning  struck 
his  hands  together  as  he  arose  and  before  he  began. 


66  RICHARD  HENRY  DANA,  JR. 

Uncle  E.  was  in  the  gallery  when  the  famous  inter 
lude  occurred  that  over-set  the  gravity  of  all  but  the 
solemn  Speaker.  There  was  a  long  interval  of  silence, 
with  nothing  whatever  to  do,  while  the  House  was 
awaiting  some  report.  It  became  tedious  and  rather 
embarrassing.  At  last,  a  man  called  out  from  the 
gallery,  "Mr.  Speaker!  give  us  a  song!"  No  one 
could  fully  appreciate  this  who  did  not  know  the 
preternatural  gravity  of  Abbott  and  the  intense  dig 
nity  of  the  Speaker  in  those  days.  The  whole  house 
and  galleries  broke  out  with  laughter,  but  the  Speaker 
rapped  and  sent  up  the  officers  to  arrest  the  delin 
quent.  Uncle  saw  the  man  who  did  it,  and  when  the 
officers  came  into  the  gallery,  this  man  pointed 
towards  a  respectable,  middle-aged  Quaker,  and  the 
officers  took  the  poor  innocent  out,  neck  and  heels, 
and  carried  [him]  before  the  grand  assembly.  He 
protested  his  innocence,  and  the  mistake  was  so 
ludicrously  apparent,  that  the  House  got  into  an 
other  fit  of  laughter,  and  the  whole  thing  was  dropped. 

In  a  call  on  Uncle  Edmund  [Jan.,  1854],  he  told  me 
another  anecdote  of  Washington,  which  he  had  from 
Grandfather.  During  the  visit  at  Valley  Forge,1  at 
the  time  when  the  cider  was  produced,  a  New  Eng 
land  gentleman  at  the  table  told  a  story  which  took 
the  fancy  of  Washington  mightily.  He  lay  back  in 
his  chair,  completely  overcome  with  laughter,  and 
spread  his  handkerchief  over  his  face.  In  a  few  mo 
ments,  he  withdrew  his  kerchief,  and  appeared  the 

1  Hon.  Francis  Dana,  grandfather  of  R.  H.  Dana,  Jr.,  visited  Washing 
ton  at  Valley  Forge  in  1779,  having  been  appointed  by  the  Continental 
Congress  chairman  of  the  committee  on  the  conduct  of  the  war,  with  in 
structions  to  proceed  to  Valley  Forge  and  to  report. 


CONVERSATIONS  WITH  UNCLE  EDMUND      67 

grave  man  again;  but  in  half  an  hour  afterwards,  this 
story  suddenly  came  over  him  and  he  fell  back  in 
his  chair  again,  fairly  convulsed  with  laughter,  and 
it  was  some  time  before  he  recovered  his  composure. 

This  is  to  be  remembered,  because  it  is  wrongly 
said  that  Washington  never  laughed. 

He  also  said  that  when  he  was  in  Virginia,  in  the 
Randolph  family,  he  heard  an  anecdote  of  Marshall's 
visit  to  Mount  Vernon.  M.  was  an  absent  and  rather 
negligent  man.  He  was  riding  out  to  Mount  Vernon 
with  a  party  of  gentlemen,  on  horseback,  in  the  fashion 
of  that  day,  with  saddle-bags.  When  within  a  mile 
of  the  house,  they  alighted  and  opened  their  bags  and 
made  some  change  in  their  dress.  Marshall,  it  seems, 
at  the  last  tavern,  had,  in  absence  of  mind,  put  over 
his  horse's  back  the  pair  of  saddle-bags  that  happened 
to  be  nearest  to  him,  and  had  thus  exchanged  his  for 
those  of  a  plain  farmer  going  to  market;  and  when 
the  other  gentlemen  took  from  their  bags,  coats, 
vests,  and  cravats,  Marshall  drew  out  two  long 
squashes,  a  pumpkin,  and  some  ears  of  corn.  This 
threw  the  whole  company  into  a  fit  of  laughter. 
Just  at  this  moment,  Washington  drove  up,  and  sa 
luted  them,  and  inquired  into  the  cause  of  the  sport, 
and  when  they  told  him  in  broken  language  inter 
rupted  with  bursts  of  laughter,  pointing  to  Marshall 
and  his  bags,  Washington  got  off  his  horse  and  leaned 
up  against  him,  hardly  able  to  stand  for  laughter. 

NOTE.  Substantially  the  latter  story  is  told  in  the  Life  of  Judge  Jere 
miah  Smith,  and  repeated  by  Mr.  Owen  Wister  in  his  "Seven  Ages  of 
Washington"  (p.  94).  There  are  some  differences  in  detail.  In  the  Life 
of  Judge  Smith,  it  is  stated  that  it  was  a  portmanteau  instead  of  saddle 
bags,  that  it  belonged  to  a  peddler  instead  of  a  farmer,  and  that  Washing 
ton  "rolled  on  the  ground  in  his  laughter"  instead  of  leaned  up  against 


68  RICHARD  HENRY  DANA,  JR. 

his  horse.  The  story  as  it  appears  in  Judge  Smith's  Life  was  told  by  the 
Hon.  Joseph  Lewis,  for  thirty  years  a  member  of  Congress,  and  who  was 
called  by  Jefferson  "residuary  legatee  of  federalism  in  Virginia,"  to  Mr. 
Mason.  Mr.  Mason  told  it  to  Judge  Smith,  who  told  it  to  a  lady,  who  in 
turn  wrote  it  down  the  evening  after,  and  years  later  gave  this  written 
account  to  Mr.  Morrison,  Judge  Smith's  biographer. 

That  the  stories  differ  in  detail  is  good  proof  of  substantial  accuracy. 
Too  much  agreement  in  detail  from  different  witnesses  savors  of 
"cooked-up"  if  not  manufactured  evidence,  or  at  least  as  coming  pretty 
directly  from  one  common  source.  Note,  for  example,  the  differences  in 
the  accounts  of  the  same  incidents  in  the  Gospels.  The  main  point  in 
these  two  accounts  of  this  incident  of  Washington's  life  is  that  Washing 
ton  laughed,  and  laughed  uproariously,  at  Marshall's  plight. 


Ill 

THE  BIBLE  IN  SCHOOLS 

[Mr.  Dana's  argument  was  in  defense  of  a  school  committee 
of  a  Maine  town,  that  had  refused  a  child  permission  to  attend 
the  local  public  schools,  on  the  ground  that  the  child  refused  to 
be  present  when  the  English  version  of  the  Bible  was  being  read. 
The  father,  a  Roman  Catholic,  was  a  citizen  of  the  town  and 
a  taxpayer,  and  he  brought  suit  against  the  committee. 

The  defense  was  that  members  of  a  school  committee  were 
public  officers,  that  the  law  and  constitution  of  the  State  of 
Maine  gave  these  officers  discretion  as  to  what  should  be  read 
and  studied  in  the  schools  under  them,  that  the  law  was  clear 
that  "a  public  officer,  exercising  a  discretion,  judicial  in  its 
character,  cast  upon  him  by  law,  is  not  liable  to  private  action 
for  damages  unless  he  acts  in  bad  faith  or  from  malice."  Mr. 
Dana  then  maintained  that,  as  the  Bible  had  always  been  read 
in  the  public  schools  of  Maine,  as  the  teachers  omitted  those 
passages  in  the  Bible  in  which  the  translation  was  contested  by 
the  Roman  Catholics,  and  as  there  was  no  evidence  of  special 
bad  faith  or  malice,  the  members  of  the  school  committee  were 
not  liable  in  damages  to  the  father. 

So  much  of  the  argument  as  regarded  the  constitution  and 
statutes  of  Maine  at  the  time  (which  have  since  been  altered  as 
to  the  reading  of  the  Bible  in  the  public  schools),  and  the  gen 
eral  doctrine  maintained  by  Mr.  Dana  as  to  the  personal  liability 
of  public  officers,  above  stated,  I  have  omitted,  and  include  in 
this  collection  only  the  portion  relating  to  the  Bible  itself.  Mr. 
Dana  suggested  that  the  real  remedy  for  the  father,  and  others 
who  agreed  with  him,  was  to  appeal  to  the  legislature  to  change 
the  law,  and  not  to  the  courts  to  get  damages  under  existing  law. 

Mr.  Dana's  argument  was  published  and  widely  distributed 


70  RICHARD  HENRY  DANA,  JR. 

by  religious  societies,  and  attracted  much  attention  in  the  press 
of  the  country  at  the  time.] 

IT  may  be  said  that,  in  executing  the  power  con 
ferred  on  us  by  the  statutes,  we  have  gone  to  an  un 
reasonable  length,  and  so  far  violated  the  common 
rights  of  the  plaintiffs,  as  to  make  our  course  uncon 
stitutional.  Not  conceding  that  this  question  is  open 
to  the  plaintiffs,  I  take  pleasure  in  meeting  it  freely 
and  frankly.  This  is,  of  all  others,  the  point  on  which 
my  clients,  supported  by  a  unanimous  vote  of  the 
late  town  meeting  at  Ellsworth,  desire  to  meet  their 
opponents.  I  take  the  ground,  then,  that 

[The  Bible]  has  been  used  in  the  public  schools 
of  Maine  since  she  has  been  a  state,  and  while  a  part 
of  Massachusetts,  from  the  beginning.  It  is  not  re 
quired  as  an  act  of  religious  worship,  nor  is  there  any 
allegation  or  pretense  that  doctrinal  passages  have 
been  selected,  or  that  it  has  in  any  way  been  used  as 
a  means  of  conveying  instructions  or  impressions 
favorable  to  the  peculiar  tenets  of  any  sect  or  denom 
ination  of  Christians,  and  unfavorable  to  those  of 
others,  or  that  the  passages  in  which  the  two  trans 
lations  differ  have  ever  been  read  in  the  school.  The 
defendants  do  not  put  their  case  upon  the  ground 
that  they  have  a  right  to  compel  the  reading  of  the 
Bible  as  a  means  of  teaching  the  principles  and  facts 
of  a  revealed  religion,  in  which  many,  as  Jews,  Mo- 
hommedans,  and  skeptics  of  all  shades,  do  not  believe; 
still  less,  the  reading  of  this  particular  version,  to 
which  Roman  Catholics,  and  other  denominations 
of  Christians,  may  object.  The  objection  is  to  the 
use  of  the  book  at  all.  The  Bible  is  a  collection  of 
books,  sixty-six  in  number,  the  work  of  different 
writers,  on  various  subjects,  written  at  very  remote 


THE  BIBLE  IN  SCHOOLS  71 

periods  of  time,  first  called  THE  BIBLE,  THE  BOOK, 
by  St.  John  Chrysostom  at  Constantinople,  in  the 
fifth  century.  In  this  collection  there  are  portions 
historical,  portions  purely  narrative,  portions  poeti 
cal  and  imaginative,  portions  conveying  by  precept 
and  parable  moral  lessons.  As  to  all  these  portions, 
there  is  no  contest  on  the  point  of  translation.  In 
deed,  there  are  only  some  half-dozen  places  in  the 
whole  collection  in  which  the  Douay  Bible  makes 
a  dogmatic  and  doctrinal  issue  with  the  common 
English  Bible.  And,  forsooth,  this  entire  book,  the 
noblest  monument  of  style,  of  thought,  of  beauty,  of 
sublimity,  of  moral  teaching,  of  pathetic  narrative, 
the  richest  treasury  of  household  words,  of  familiar 
phrases,  of  popular  illustrations  and  associations,  that 
any  language  has  ever  possessed,  is  not  to  be  read  in 
schools,  because  the  parents  differ  in  opinion  as  to  the 
translation  of  Mera^o^Vare.  The  contested  passages 
have  never  been,  so  far  as  appears,  read  in  the  school, 
but  the  entire  book,  the  whole  sixty-six  books,  nar 
rative,  parable,  history,  moral  law,  psalms  and  spirit 
ual  songs,  prophecy,  all  are  to  be  banished,  because 
somewhere,  in  some  epistle,  in  a  place  never  read  in 
school,  "repent"  is  not  rendered  "do  penance"! 
Need  I  ask  your  Honors  if  our  act  is  unreasonable? 
Is  not  the  objection  far  more  unreasonable? 

What  can  these  defendants  do?  They  are  obliged 
by  law,  they  have  no  option,  to  see  to  it  that  the 
principles  of  morality  and  all  the  virtues  shall  be 
taught  in  the  schools.  They  are  to  "take  diligent 
care  and  exert  their  best  endeavors"  that  these  prin 
ciples  be  impressed  on  the  minds  of  the  children  and 
youth.  The  public-school  system  was  intended  to 
provide,  as  Chief  Justice  Shaw  said,  in  Sherman  v. 


72  RICHARD  HENRY  DANA,  JR. 

Charlestown,  "a  system  of  moral  training  as  well  as 
seminaries  of  learning."  How  can  principles  of  mo 
rality  be  taught  except  on  the  basis  of  religion?  A 
system  of  morality,  not  founded  on  religion,  is  not 
morality,  but  only  an  enlightened  self-interest.  Whately 
says  that  the  maxim  "honesty  is  the  best  policy" 
is  a  true  maxim,  but  that  he  who  acts  upon  that 
maxim  only,  is  not  an  honest  man.  So  is  it  with  what 
is  called  morality,  divorced  from  religion. 

But  our  opponents  may  say  that  they  do  not  object 
to  the  Bible,  but  to  the  translation.  We  cannot  read 
the  original  in  the  schools.  This  is  the  common  Eng 
lish  Bible,  which  has  always  been  used.  It  is  not  a 
66  Protestant  Bible."  Great  portions  of  the  transla 
tions  were  made  by  men  in  the  bosom  of  the  General 
Church,  before  the  Reformation,  by  Wickliffe,  Tyn- 
dale,  Coverdale,  and  Matthew.  Testimony  to  its 
accuracy  has  been  borne  by  learned  men  of  the  Roman 
Church.  Leddes  calls  it  "of  all  versions  the  most  ex 
cellent  for  accuracy,  fidelity  and  the  strictest  atten 
tion  to  the  letter  of  the  Text";  and  Selden  calls  it 
"the  best  version  in  the  world."  As  a  well  of  pure 
English  undefiled,  as  a  fountain  of  pure  idiomatic 
English,  it  has  not  its  equal  in  the  world.  It  was  for 
tunately  —  may  we  not,  without  presumption,  say 
providentially  —  translated  at  a  time  when  the  Eng 
lish  language  was  in  its  purest  state.  It  has  done 
more  to  anchor  the  English  language  in  the  state  it 
then  was,  than  all  other  books  together.  The  fact 
that  so  many  millions  of  each  succeeding  generation, 
in  all  parts  of  the  world  where  the  English  language 
is  used,  read  the  same  great  lessons  in  the  same  words, 
not  only  keeps  the  language  anchored  where  it  was 
in  its  best  state,  but  it  preserves  its  universality,  and 


THE  BIBLE  IN  SCHOOLS  73 

frees  it  from  all  material  provincialisms  and  patois, 
so  that  the  same  words,  phrases,  and  idioms  are 
used  in  London,  New  York,  San  Francisco,  Australia, 
China,  and  India.  To  preserve  this  unity  and  stead 
fastness,  the  Book  of  Common  Prayer  has  done  much, 
Shakespeare,  Milton,  and  Bunyan  have  done  much, 
but  the  English  Bible  has  done  tenfold  more  than 
they  all. 

From  the  common  English  Bible,  too,  we  derive 
our  household  words,  our  phrases  and  illustrations, 
the  familiar  speech  of  the  people.  Our  associations 
are  with  its  narratives,  its  parables,  its  histories  and 
its  biographies.  If  a  man  knew  the  Bible  in  its  origi 
nal  Greek  and  Hebrew  by  heart,  and  did  not  know 
the  common  English  version,  he  would  be  ignorant 
of  the  speech  of  the  people.  In  sermons,  in  public 
speeches,  from  the  pulpit,  the  bar,  and  the  platform, 
would  come  allusions,  references,  quotations,  —  that 
exquisite  electrifying  by  conductors,  by  which  the 
heart  of  a  whole  people  is  touched  by  a  word,  a  phrase, 
in  itself  nothing,  but  everything  in  its  power  of  con 
ducting,  —  and  all  this  would  be  to  him  an  unknown 
world.  No  greater  wrong,  intellectually,  could  be 
inflicted  on  the  children  of  a  school,  ay,  even  on  the 
Roman  Catholic  children,  than  to  bring  them  up  in 
ignorance  of  the  English  Bible.  As  well  might  a 
master  instruct  his  pupil  in  Latin,  and  send  him  to 
spend  his  days  among  scholars,  and  keep  him  in 
ignorance  of  the  words  of  Virgil  and  Horace  and 
Cicero  and  Terence  and  Tacitus.  As  a  preparation 
for  life,  an  acquaintance  with  the  common  English 
Bible  is  indispensable. 

The  Douay  Bible,  on  the  other  hand,  was  trans 
lated  on  the  Continent,  by  men  of  English  origin, 


74  RICHARD  HENRY  DANA,  JR. 

it  is  true,  but  who,  banished  from  England  by 
the  Protestant  persecutions,  were  not  Englishmen  in 
speech,  in  literature,  in  association,  or  in  habit.  The 
English  ecclesiastics  of  the  Roman  Church,  even  to 
this  day,  in  style  and  speech,  as  in  habit  and  feeling, 
are  un-English.  Their  literature,  their  training,  their 
associations,  are  Continental.  Much  more  so  was  it 
then,  when  England  was  closed  against  them.  Their 
translation  suffered  accordingly.  Where  it  does  not 
agree  with  the  common  Bible,  it  is  comparatively  a 
piece  of  awkward,  unidiomatic  English.  Even  where 
its  style  may  have  been  as  good  originally,  the  lan 
guage  has  settled  upon  our  basis,  and  not  upon  theirs. 
Even  among  Romanists  themselves,  it  does  not  fur 
nish  the  household  words,  the  popular  phrases,  the 
illustrations  and  associations  known  to  the  people 
and  cherished  by  their  orators  and  scholars.  One  of 
those  who  has  forsaken  the  communion  of  the  Eng 
lish  Church  has  expressed  himself  in  deeply  touching 
tones  of  lamentation  over  all  which,  in  forsaking  our 
translation,  he  feels  himself  to  have  forgotten  and 
lost.  These  are  his  words :  — 

"Who  will  not  say  that  the  uncommon  beauty  and 
marvelous  English  of  the  Protestant  Bible  is  not  one 
of  the  great  strongholds  of  heresy  in  this  country?  It 
lives  on  the  ear,  like  a  music  that  can  never  be  for 
gotten,  like  the  sound  of  church  bells,  which  the  con 
vert  hardly  knows  how  he  can  forego.  Its  felicities 
often  seem  to  be  almost  things  rather  than  mere 
words.  It  is  part  of  the  national  mind,  and  the  an 
chor  of  national  seriousness.  .  .  .  The  memory  of 
the  dead  passes  into  it.  The  potent  traditions  of  child 
hood  are  stereotyped  in  its  verses.  The  power  of  all 
the  griefs  and  trials  of  a  man  is  hidden  beneath  its 


THE  BIBLE  IN  SCHOOLS  75 

words.  It  is  the  representative  of  his  best  moments, 
and  all  that  there  has  been  about  him  of  soft  and 
gentle,  and  pure  and  penitent  and  good,  speaks  to 
him  forever  out  of  his  English  Bible.  ...  It  is  his 
sacred  thing,  which  doubt  has  never  dimmed,  and 
controversy  never  soiled.  In  the  length  and  breadth 
of  the  land  there  is  not  a  Protestant  with  one  spark 
of  religiousness  about  him,  whose  spiritual  biography 
is  not  in  his  Saxon  Bible." 

Throwing  dogmatic  theology  out  of  the  question, 
can  any  one  doubt  that  the  real  question  here  is, 
not  whether  each  child  shall  choose  its  version,  but 
whether  the  Bible  shall  be  read  at  all?  There  are 
various  translations.  The  Romanist  thinks  peravota) 
wrongly  translated.  The  Unitarian  thinks  there  are 
mistranslations  and  interpolations  favoring  the  doc 
trine  of  the  Trinity.  The  Baptist  thinks  that  /3a7m£w 
should  be  translated  immerse.  And  all  of  these  have 
their  translations.  But  all  have  heretofore  agreed 
that  the  common  English  Bible  should  be  read  in  the 
schools.  If  one  is  to  insist  on  his  version,  another  will 
on  his.  Confusion  and  scandal  will  be  introduced, 
and  few  school  committees  or  teachers  will  trouble 
themselves  to  enforce  such  a  motley  system  as  that. 
Besides,  if  there  is  a  conscience  against  reading  a  dan 
gerous  book,  will  there  not  be  equally  a  conscience 
against  hearing  it  read?  But  if  there  is  a  conscience 
in  the  Papists  against  hearing /xera^oect)  called  "  repent," 
will  there  not  be  a  conscience  in  the  Protestant 
against  hearing  it  called  "do  penance"?  No,  may 
it  please  your  Honors,  until  a  uniform  translation 
can  be  agreed  upon,  carefully  avoiding  controverted 
passages,  as  we  have  done,  the  Bible  will  not  be  read 
in  the  schools  at  all.  And  I  feel  that  I  am  pleading 


76  RICHARD  HENRY  DANA,  JR. 

here,  to-day,  for  the  Bible  in  the  schools,  and  not  on 
any  question  of  option  or  choice  in  translations.  If 
the  Bible  is  not  read,  where  so  well  can  "the  prin 
ciples  of  morality  and  all  the  virtues"  be  taught? 
"How  infinitely  superior,"  says  Maurice,  "is  a  gospel 
of  facts  to  a  gospel  of  notions!"  How  infinitely  su 
perior  to  abstract  ethics  are  the  teachings  of  the  nar 
ratives  and  parables  of  the  Bible !  What  has  ever  taken 
such  hold  on  the  human  heart,  and  so  influenced  hu 
man  action!  The  story  of  Jacob  and  Esau,  the  un- 
equaled  narrative  of  Joseph  and  his  brethren,  Abra 
ham  and  Isaac,  the  pathetic  and  romantic  story  of 
Saul,  the  death  of  Absalom,  Naaman  the  Syrian,  the 
old  prophet,  the  wild,  dramatic,  poetical  histories  of 
Elijah  and  Elisha,  the  captivities  of  the  Jews,  the 
episode  of  Ruth,  unsurpassed  for  simple  beauty  and 
pathos,  and  time  would  fail  me  to  tell  of  Daniel,  Isaiah, 
Samuel,  Eli,  and  the  glorious  company  of  the  apostles, 
the  goodly  fellowship  of  the  prophets,  and  the  noble 
army  of  martyrs!  Where  can  a  lesson  of  fraternity 
and  equality  be  struck  so  deeply  into  the  heart  of  a 
child  as  by  the  parable  of  Lazarus  and  Dives?  How 
can  the  true  nature  and  distinction  of  charity  be  bet 
ter  expounded  than  by  the  parables  of  the  widow  who 
cast  her  mite  into  the  treasury,  and  the  woman  with 
the  alabaster  box  of  precious  ointment?  Can  the  prod 
igal  son,  the  unjust  steward,  the  lost  sheep,  ever  be 
forgotten?  Has  not  the  narrative  of  the  humble  birth, 
the  painful  life,  the  ignominious  death  of  Our  Lord, 
wrought  an  effect  on  the  world  greater  than  any  and 
all  lives  ever  wrought  before?  —  even  on  those  who 
doubt  the  miracles,  and  do  not  believe  in  the  Mys 
tery  of  the  Holy  Incarnation,  and  the  Glorious  Res 
urrection  and  Ascension ! 


THE  BIBLE  IN   SCHOOLS  77 

Remember,  too,  we  entreat  you,  that  it  is  at  the 
school  alone,  that  many  of  these  children  can  read 
or  hear  these  noble  teachings.  If  the  Book  is  closed  to 
them  there,  it  is  open  to  them  nowhere  else. 

Nor  would  I  omit  to  refer  to  the  reading  of  the 
Bible  as  a  part  of  the  education  of  the  fancy  and  imagi 
nation.  Whatever  slight  may  be  thrown  upon  these 
faculties  by  men  calling  themselves  practical  men, 
they  are  powerful  agents  in  the  human  system,  which 
no  man  can  neglect  or  abuse  with  impunity.  Pre 
occupy,  preoccupy  the  minds  of  the  young  with  the 
tender,  the  beautiful,  the  rhythmical,  the  magnifi 
cent,  the  sublime,  which  God  in  his  bounty,  and  wis 
dom  too,  has  poured  out  so  profusely  into  the  minds 
of  his  evangelists  and  prophets!  Nowhere  can  be 
found  such  varieties  of  the  beautiful  and  sublime, 
the  magnificent  and  simple,  the  tender  and  terrific. 
And  all  this  is  brought  to  our  doors,  and  offered  to 
our  daily  eye.  If  the  mind  of  the  youth,  girl  and  boy, 
is  not  preoccupied  by  what  is  moral,  virtuous,  and  re 
ligious,  the  world  is  ready  to  attack  the  fancy  and 
imagination  with  all  the  splendors  and  seductions 
of  sense  and  sin.  Their  minds  will  have  food  for  the 
imagination  and  fancy,  and  if  they  are  not  led  to  the 
Psalms,  and  Isaiah,  and  Job,  and  the  Apocalypse, 
and  the  narratives  and  parables,  they  will  find  it  in 
Shelley,  Byron,  Rousseau,  and  George  Sand,  and  the 
feebler  and  more  debased  novels  of  the  modern  press 
of  France. 

Following  then  the  guidance  of  the  statute,  and 
acting  in  good  faith,  with  no  sectarian  object  alleged 
or  offered  to  be  proved  against  us,  we  trust  we  have 
made  no  unreasonable  use  of  authority,  in  declining 
to  remit  the  requirement  of  reading  the  common  Bible. 


IV 

SPEECH  ON  THE  JUDICIARY;  MASSACHU 
SETTS  CONSTITUTIONAL  CONVENTION 
OF  1853 

[In  the  Biography  of  Mr.  Dana,  Mr.  Adams  says  of  the  Con 
stitutional  Convention:  "Among  its  members  were  many  of  the 
principal  Massachusetts  public  characters  of  the  time,  including 
Charles  Sumner,  Rufus  Choate,  Henry  L.  Dawes,  Robert  Ran- 
toul,  Henry  Wilson,  Sidney  Bartlett,  Benjamin  F.  Butler,  and 
both  the  Marcus  Mortons,  the  father  who  had  been  governor, 
and  the  son  who  was  subsequently  chief  justice.  The  convention 
was  presided  over  by  N.  P.  Banks.  Though  it  was  Dana's  first 
appearance  in  a  deliberative  body,  he  at  once  came  to  the  front. 
Indeed,  there  was  no  man  in  the  convention  who  rose  more 
rapidly  or  into  greater  prominence  as  a  debater  than  did  Dana." 

This  speech  is  the  most  celebrated  of  Mr.  Dana's  in  the  con 
vention,  and  has  been  reprinted  several  times  when  the  question 
of  the  appointment  and  tenure  of  judges  has  come  up  in  other 
states.  Of  this  speech,  Rufus  Choate,  who  was  present  and  heard 
it,  said,  "It  has  been  magnificent.  It  is  philosophical,  affecting, 
brilliant,  logical,  everything." 

As  matters  stood  then  in  Massachusetts,  the  judges  were  ap 
pointed  by  the  governor  and  council  for  life.  The  issue,  as  Mr. 
Dana  puts  it  in  his  journal  at  the  time,  is  as  follows:  "At  the 
committee,  Governor  Morton,  Chairman,  reported  it  inexpedient 
to  make  any  change  in  the  appointment  or  tenure  of  judges. 
Wilson  moved  an  amendment  to  limit  the  term  to  ten  years, 
they  being  all  nominated  by  the  governor.  Dr.  Hooker  moved 
to  amend  that  by  making  them  elective  by  the  people  for  terms 
of  seven  years.  On  these  together  came  the  debate." 

In  the  early  days,  all  the  judges  of  the  thirteen  states  were 


SPEECH  ON  THE  JUDICIARY  79 

appointed  substantially  in  the  same  manner  as  in  Massachusetts; 
but  gradually  in  the  fifties  most  of  the  states  changed  this 
method,  usually  with  a  view  of  "  diminishing  executive  patron 
age."  As  it  stands  to-day  (1910)  in  Massachusetts,  Delaware, 
Maine,  New  Hampshire,  and  for  the  United  States  federal  courts 
and  the  courts  of  the  territories  and  the  District  of  Columbia, 
as  in  England,  all  the  judges  are  appointed  by  the  chief  execu 
tive.  In  Connecticut,  Mississippi,  and  New  Jersey,  the  judges 
of  the  highest  court  are  appointed  by  the  governor,  —  subject 
to  confirmation  by  the  senate  in  Mississippi  and  New  Jersey,  and 
by  the  legislature  in  Connecticut.  In  Rhode  Island,  South  Caro 
lina,  Virginia  and  Vermont,  the  judges  of  the  highest  court  are 
elected  by  the  two  houses  of  the  legislature  in  joint  convention. 
All  other  state  judges  are  elected  by  the  people.  The  terms  of 
office  vary  from  life-tenure  in  the  federal  courts,  Massachusetts, 
New  Hampshire,  and  Rhode  Island,  through  periods  varying 
from  twenty-one  years  in  Pennsylvania  to  two  years  in  Vermont. 
The  usual  terms  are  six  years  for  the  highest  courts  and  four 
years  for  the  lower  courts.  Therefore,  it  is  only  in  Massachu 
setts  and  New  Hampshire,  and  in  the  federal  courts,  that  the 
judges  are  both  appointed  by  the  executive  and  hold  office  for 
life.1 

The  attempt  to  take  the  patronage  out  of  the  hands  of  the 
executive  has  only  transferred  the  patronage  to  the  party  ma 
chines;  so  that  in  New  York,  for  example,  the  judicial  candi 
dates  are  subject  to  large  assessments  for  party  purposes,  usu 
ally  equivalent  to  a  whole  year's  salary,  by  the  dominant  party 
of  the  judicial  district.2  The  state  bar  associations  in  many 
states,  for  example,  in  New  York,  have  been  active  in  suggesting 
nominations  and  courageous  in  openly  opposing  bad  ones,  and 
this  alone  has  kept  the  bench  as  efficient  as  it  is  under  the  elec 
tive  system.3 

1  See  Constitutions  of  the  United  States,  Frederic  J.  Stimson  (1908), 
book  iii,  section  654. 

2  American  Law  Review,  vol.  xxii,  p.  766. 

3  For  examples  of  the  subserviency  of  judges  to  the  ruling  powers  in 
politics  under  an  elective  judiciary  system,  see  "The  Beast  and  the  Jun- 


80  RICHARD  HENRY  DANA,  JR. 

The  New  York  State  Bar  Association  has  a  standing  commit 
tee  "On  the  Selection  for  Judicial  Office  "  with  representation 
from  each  of  the  nine  judicial  districts.  In  Pennsylvania,  on  the 
authority  of  the  Hon.  William  H.  Hornblower,  of  New  York,  when 
addressing  the  State  Bar  Association  of  Massachusetts,  no  judge 
can  be  nominated  by  the  predominant  party  unless  he  is  approved 
of  by  the  great  railroad  of  the  state.  After  years  of  experimenting 
with  other  methods  in  other  states,  almost  every  eminent  lawyer 
throughout  the  country  says  that  the  Massachusetts  system,  for 
which  Mr.  Dana  spoke,  is  far  the  best. 

Mr.  Dana's  speech  had  the  effect  of  defeating  the  proposition 
of  electing  the  judges;  but  the  proposition  for  appointment  by 
the  governor  and  council  for  a  term  of  years  was  adopted  by 
the  convention.  It  was  this  latter  proposition  which  was  the 
chief  cause  of  attack  on  the  Constitution  proposed  by  the  con- 
jvention,  and  led  to  its  defeat  by  a  majority  of  about  6000  in  a 
'total  popular  vote  of  125,000.] 

MR.  PRESIDENT:  I  suppose  the  Convention  will 
agree  with  me,  without  argument,  that  the  sub 
ject  which  we  are  now  upon  is  one  of  more  enduring 
interest,  and  more  universal  concernment,  than  any 
that  has  been  before  us.  It  often  happens,  I  may  say 
it  usually  happens,  that  those  subjects  which  are 
followed  by  the  most  serious  consequences  are  not 
those  which  attract  at  the  moment  the  greatest  at 
tention.  They  come  often,  like  the  kingdom  of 
Heaven  itself,  without  observation.  So  it  would  be 
if  we  should  make  this  great  fundamental  change  in 
our  Constitution  without  full  consideration. 

Why,  Mr.  President,  we  propose  to  change  one 
of  the  great  organic  departments  of  the  government. 
The  government  of  Massachusetts  is  divided  into 
three  departments,  the  legislative,  the  executive, 

gle,"  by  Ben  B.  Lindsey,  of  Denver,  Colorado,  in  Everybody's  Maga 
zine,  1909-10. 


SPEECH  ON  THE  JUDICIARY  81 

and  the  judicial.  The  feature  which  most  charac 
terizes  the  judicial  department  is  the  manner  in  which 
it  obtains  and  holds  its  power,  and  that  we  propose 
to  change  essentially.  A  system  which  has  existed 
in  England  from  the  birth  of  liberty  to  the  preseni| 
time  ;  a  system  which  has  existed  in  Massachusetts  fro  ml 
the  origin  of  the  state  to  this  hour;  a  system  which 
has  existed  in  our  national  government  from  the  be 
ginning;  a  system  which  exists  in  nearly  all  New 
England,  and  in  almost  all  of  the  states  of  the  Union  ; 
a  system  under  which  our  judiciary  has  grown  up,  and 
under  which  every  man  in  the  United  States  of  Amer 
ica  has  grown  into  manhood,  —  for  those  changes 
which  have  been  made  have  not  yet  reared  a  genera 
tion,  —  that  system  you  threaten  to  subvert.  And 
why?  I  ask,  why? 

It  was  said  here  when  we  came  together,  and  it 
met  the  approbation  of  the  Convention,  and  it  has 
since  been  repeated  frequently  by  judicious  men, 
that  we  should  make  no  changes  unless  there  was 
some  abuse.  Is  it  not  a  fundamental  maxim  of 
America  that  no  change  should  be  made  until  yon,, 
find  an  existing  evil  to  be  remedied?  After  achieving' 
our  independence,  though  smarting  under  the  tyranny 
of  England,  almost  hating  the  very  name  and  sight 
of  an  Englishman,  we  yet  adopted  a  Constitution 
very  like  that  of  England,  more  like  it  than  any  other 
that  ever  existed.  Why?  Because  it  was  formed  out 
of  institutions  which  stood  here.  I  take  the  liberty 
to  say  that  the  American  system  is  this:  a  system 
which  recognizes  existing  institutions;  a  system  \of 
adaptation  ;  a  system  of  reforming  abuses.  The  Amer 
can  system  is  not  to  speculate,  not  to  theorize,  n 
to  make  experiments  in  government,  but  to  ta 


m  RICHARD  HENRY  DANA,  JR. 

things  as  we  find  them,  and  adapt  ourselves  to  them; 
to  recognize  the  state  of  society  and  then  make  re 
forms  where  there  are  evils  to  be  reformed.  Now  I 
ask  how,  this  being  our  philosophy,  do  you  propose 
to  treat  the  judicial  department?  In  the  first  place, 
is  there  any  abuse  existing?  Has  any  man  heard  of 
an  abuse?  I  have  not  heard  of  it.  Has  it  been  said 
in  this  Commonwealth  that  the  judicial  department 
has  encroached  upon  the  executive?  I  have  never  heard 
it.  Has  it  been  said  that  the  judiciary  has  encroached 
upon  the  legislative  department?  Has  it  been  said 
that  the  judicial  department  is  oppressing  the  people? 
Nobody  has  ever  whispered  it.  Has  there  been  a  pe 
tition  to  the  legislature  to  change  the  Constitution 
in  that  particular?  Petitions  on  other  subjects  have 
been  presented;  but  I  do  not  know  of  a  single  instance 
where  a  petition  has  been  presented  to  either  branch 
of  the  legislature,  asking  them  to  change  the  judi 
ciary  department.  Is  there  a  gentleman  in  this  Con 
vention  who  knows  of  an  instance?  Is  there  any  in 
dication  of  a  popular  wish  that  this  should  be  done? 
You  may  read  articles  in  the  newspapers  written  by 
one  man;  but  have  we  any  indication  that  the  public 
wishes  any  change  here?  I  have  looked  in  vain  for 
any  indication  of  the  kind. 

As  regards  offices,  two  things  were  proposed  to 
be  done:  to  elect  certain  officers,  not  being  judges, 
and  to  diminish  and  not  increase  the  power  and  pa 
tronage  of  the  executive.  We  have,  then,  the  voice 
of  a  majority  of  the  legislature  in  1852,  and  the  voice 
of  two  of  the  great  parties  in  1853,  in  favor  of  this 
Convention;  and  I  look  in  vain  for  the  slightest  in 
dication  of  any  intention  to  change  the  tenure  of  the 
judicial  department.  I  do  not  wonder,  therefore. 


SPEECH  ON  THE  JUDICIARY  83 

that  my  friend  from  Natick  (Mr.  Wilson)  said  yes 
terday  that  he  could  not  vote  for  an  elective  judi 
ciary  without  an  appearance  of  something  like  bad 
faith.  He  told  this  Convention,  and  he  told  them 
truly,  that  by  his  addresses  and  speeches,  and  by  the 
one  hundred  and  fifty  letters  —  I  sympathize  with 
him  —  which  he  had  written  to  all  parts  of  the  Com 
monwealth  on  the  subject  of  this  Convention,  he 
was  so  committed  against  an  elective  judiciary  that 
he  could  not  sustain  it  here.  But  he  does  not  stand 
alone.  If  there  is  any  gentleman  of  prominence 
enough  to  be  noticed,  who  has  gone  into  one  town  of 
Massachusetts,  and  presented  the  case  of  this  Con 
vention,  and  included  in  the  issue  an  elective  judi 
ciary,  I  should  like  to  know  who  and  where  he  is. 
Every  gentleman  to  whom  I  have  spoken  has  told 
me  that  he  has  done  no  such  thing,  but  quite  the  con 
trary,  —  that  he  has  studiously  avoided  raising  that 
issue. 

Let  us  recollect  the  history  of  this  Convention. 
In  1851  the  proposition  for  a  Convention  was  re 
jected  by  a  majority  of  some  four  thousand,  and  it 
was  very  doubtful  whether  it  would  be  adopted  in 
1852.  It  was  therefore  necessary  to  conciliate  all 
persons.  I  do  not  wish  to  state  it  upon  my  own 
knowledge,  but  I  put  it  to  the  honor  of  every  man, 
whether  this  question  of  a  Convention  was  not  put 
to  the  people  last  November  upon  an  understanding 
that  the  judiciary  should  not  be  changed;  whether 
there  were  not  thousands  of  votes  obtained  through 
out  the  state  for  this  Convention,  which  would  not 
have  been  given  if  it  had  been  understood  that  an 
attack  was  to  be  made  upon  the  judiciary  system? 
I  confess  that  is  not  precisely  the  appearance  with 


84  RICHARD   HENRY  DANA,  JR. 

which  I  should  wish  to  see  so  great  a  change  auspi 
cated. 

*  But  I  do  not  confine  myself  to  the  subject  of  an 
|lective  judiciary,  for  there  are  two  propositions:  the 
one  is  to  make  it  elective,  and  the  other  is  to  limit 
the  tenure  of  office. 

The  twenty-ninth  article  of  the  Bill  of  Rights 
says:  — 

"It  is  essential  to  the  preservation  of  the  rights 
of  every  individual,  his  life,  liberty,  property  and 
character,  that  there  be  an  impartial  interpretation 
of  the  laws  and  administration  of  justice.  It  is  the 
right  of  every  citizen  to  be  tried  by  judges  as  free, 
impartial  and  independent  as  the  lot  of  humanity 
will  admit.  It  is  therefore  not  only  the  best  policy, 
but  for  the  security  of  the  rights  of  the  people,  and 
of  every  citizen,  that  the  judges  of  the  supreme  ju 
dicial  court  should  hold  their  offices  as  long  as  they 
behave  themselves  well." 

Now,  I  say,  the  amendment  of  the  gentleman  from 
Natick  (Mr.  Wilson)  1  is  fundamental  in  its  charac 
ter;  because  it  changes  a  provision  which  has  existed 
since  1780,  and  which,  since  1780,  we  have  declared 
to  be  essential  to  the  security  of  the  rights  of  the 
people  and  of  every  citizen.  He  proposes  to  place 
the  judicial  department  more  or  less  under  the  con 
trol  and  patronage  of  the  executive. 

Now,  Sir,  did  it  ever  happen  that  such  fundamental 
changes  were  made  by  the  representatives  without 
some  notice  of  a  desire  upon  the  part  of  the  people 
that  they  should  be  made?  Do  such  changes  come 

1  For  the  appointment  of  the  judges  of  the  Supreme  Judicial  Court 
for  terms  of  ten  years,  and  of  the  justices  of  the  Superior  Court  for 
terms  of  seven  years. 


SPEECH  ON  THE  JUDICIARY  85 

from  the  people  with  no  note  of  preparation,  no  pe 
tition,  no  resolution,  no  speech,  no  public  meeting, 
no  signature,  no  address,  with  no  man  daring  to  open 
his  mouth  in  a  public  meeting  and  speak  for  them? 
Was  there  so  great  a  public  demand  for  the  change, 
such  a  rush  of  public  sentiment,  calling  for  the 
change,  and  yet  five  months  ago  the  boldest  dare  not 
advocate  it  before  the  people? 

Now,  Sir,  I  am  not  particularly  incredulous.  My 
temperament  rather  inclines  me  to  superstition  than 
to  skepticism,  but  it  would  require  greater  credulity 
than  mine  to  believe  that  there  is  such  a  demand. 
If  there  be,  the  secrecy  of  it  is  one  of  the  miracles  of 
the  nineteenth  century.  It  is  very  difficult  to  be 
lieve  that,  if  such  is  the  fact,  even  my  friend  from 
Natick,  who  feels  the  popular  pulse  better  than  most 
of  us,  should  not  have  felt  a  single  throb  last  Novem 
ber,  nor  a  single  throb  last  February,  and  yet  that 
the  public  is  now,  with  a  fevered  excitement,  calling 
for  this  great  change.  I  cannot  believe  it. 

Why,  Mr.  President,  what  is  the  nature  of  the 
amendment  proposed?  I  have  said  it  was  fundamen 
tal  in  its  character,  and  to  be  sure  it  is.  The  judicial 
department,  as  it  exists  here,  is  a  peculiarity  of  re 
publican  institutions.  They  have  a  judiciary  in 
England,  but  they  have  it  under  very  different  cir 
cumstances  from  ours  in  the  United  States.  The  ju 
diciary  of  England  has  no  control  over  the  acts  of 
parliament.  They  have  no  right  to  pass  upon  any 
act  of  parliament  and  compare  it  with  the  Constitu 
tion.  They  have  no  constitution  there  except  as  an 
idea,  —  they  have  no  written  or  legal  constitution. 
But  in  this  country  the  judiciary  passes  upon  the 
validity  of  the  acts  of  the  legislature.  It  is  a  coordi- 


86  RICHARD  HENRY  DANA,  JR. 

nate  as  well  as  independent  department  of  the  gov 
ernment.  Yet,  even  in  England,  where  they  have 
not  the  same  motive  for  making  it  independent,  they 
have  guarded  it  in  every  possible  way. 

You  know,  Mr.  President,  that  up  to  the  time  of 
the  Revolution,  in  1688,  the  judges  were  dependent 
upon  the  crown  for  their  appointment  and  for  their  ten 
ure.  The  crown  removed  a  judge  whenever  it  pleased, 
and  therefore,  the  judges  being  dependent  upon  the 
crown,  the  people  could  not  have  as  fair  and  impar 
tial  a  tribunal  as  the  lot  of  humanity  would  admit. 
After  the  Revolution,  a  clause  was  introduced  into 
the  Bill  of  Rights  that  the  judges  should  hold  their 
offices  so  long  as  they  behaved  themselves  well  — 
not  a  life-tenure,  for  it  is  not  the  same  thing,  but  so 
long  as  they  behaved  themselves  well.  They  were 
liable  to  be  removed  by  impeachment  for  misconduct 
official,  or  by  the  address  of  parliament  for  miscon 
duct  unofficial,  or  for  any  other  cause.  They  were 
made  responsible  in  an  eminent  degree,  but  they  were 
made  independent.-  They,  however,  went  out  upon 
what  is  technically  called  the  "demise  of  the  crown": 
that  is,  when  the  king  died.  This  is  very  much  such  a 
rule  as  the  gentleman  from  Natick  proposes,  that  upon 
the  demise  of  the  executive,  which  is  once  a  year, 
one  or  more  judges  shall  be  placed  at  the  mercy  of 
the  crown.  He  provides  that  six  judges  shall  go  out 
in  ten  years,  which,  allowing  for  deaths,  resignations, 
etc.,  would  make  about  one  a  year,  so  that  one  judge 
of  your  supreme  court,  every  year,  will  be  at  the 
mercy  of  the  crown.  Now  in  England  they  thought 
that  was  wrong.  It  left  still  a  high  degree  of  inde 
pendence  to  the  judiciary.  .As  long  as  the  king  lived, 
the  judges  were  absolutely  independent  of  him. 


SPEECH  ON  THE  JUDICIARY  87 

The  judge  had  his  salary,  he  had  his  office,  and  he 
held  them  entirely  independent  of  the  will  of  the 
king.  But,  then,  each  judge  would  feel  that  it  might 
be  that  the  king  would  die  during  his  term  of  office, 
in  which  case,  for  one  moment  his  office  would  be  at 
the  mercy  of  the  crown.  It  might  not  be,  and  again 
it  might  be,  that  the  king  would  die  during  his  term 
of  office.  To  prevent  this  chance  affecting  his  impar 
tiality,  when  George  III  ascended  the  throne,  at  his 
majesty's  own  suggestion,  a  law  was  passed  provid 
ing  that  the  judge's  commission  should  survive  the 
demise  of  the  crown,  so  that  in  no  case  could  the 
commission  of  the  judge  be  placed  at  the  mercy  of 
the  crown. 

MR.  BUTLER,  1  of  Lowell  (interrupting).  I  desire 
to  ask  the  gentleman  a  single  question.  Was  not  the 
reason  for  the  adoption  of  the  law  in  England,  to  which 
he  has  just  alluded,  because  upon  the  death  of  the 
king  some  time  would  elapse  in  the  coronation  of  his 
successor,  and  in  starting  him  in  his  government,  in 
which,  unless  some  such  provision  was  made,  there 
might  be  a  failure  in  the  administration  of  justice? 

MR.  DANA.  No,  sir;  that  was  not  the  reason.  The 
reason  given  by  the  king  was  in  these  words,  because 
"the  independence  of  the  judges  is  essential  to  the 
impartial  administration  of  justice,  best  for  the  se 
curity  of  the  liberties  and  rights  of  my  subjects,  and 
most  conducive  to  the  honor  of  the  crown." 

Now,  I  want  the  people  of  Massachusetts  to-day 
to  be  as  magnanimous  as  that.  We  have  the  power 
—  the  people  of  Massachusetts  have  the  power  —  to 

1  Benjamin  F.  Butler. 


88  RICHARD   HENRY  DANA,  JR. 

elect  their  judges  every  month  or  every  year,  if  they 
choose,  but  I  want  them  to  come  forward  and  show 
no  less  magnanimity  than  was  shown  by  George  III. 
I  want  them  to  recognize  and  act  upon  the  principle 
that  the  "independence  of  the  judiciary  is  essential 
to  the  impartial  administration  of  justice,  best  for  the 
security  of  the  liberties  and  rights  of  the  citizens,  and 
most  conducive  to  the  honor  of  the  state.9'  Therefore 
let  us  surrender,  as  a  people,  that  prerogative.  Let 
us  put  upon  us  this  SELF-RESTRAINT.  There  is  no 

freater  virtue  in  a  free  people  than  the  willingness 
o  exercise  self-restraint.  ^ 

' 


When  gentlemen  tell  me  they  are  not  afraid  to  trust' 
the  people,  —  and  that  is  the  favorite  cry  here:  trust 
the  people  !  trust  the  people  !  —  I  must  say  to  them, 
that  is  not  the  issue.  The  question  is,  Will  not  the 
people  who  have  got  the  power  impose  upon  them 
selves  some  self-restraint?  Is  not  that  essential  to 
republican  government?  Cicero  once  said  that  the 
Athenian  Republic  could  no  more  exist  without  the 
Areopagus  than  the  world  could  exist  without  the 
providence  of  God.  Now,  sir,  a  constitutional  govern 
ment  can  no  more  exist  without  a  power  to  assert 
the  supremacy  of  the  Constitution  than  the  world 
can  exist  without  the  providence  of  God. 

Sir,  what  is  a  Constitution?  Why  are  we  here,  in 
a  Convention,  to  revise  one?  Why  are  we  taking  the 
time  and  money  of  the  Commonwealth,  and  our  own, 
to  make  a  Constitution?  Is  it  not  enough  to  have 
judges,  legislatures,  and  governors?  The  legislature 
is  elected  by  the  people,  and  why  not  trust  the  peo 
ple?  Why  have  a  Constitution  at  all?  Why  not  trust 
the  people?  I  put  it  to  those  gentlemen,  who  ask  me 
why  I  will  not  trust  the  people  to  elect  our  judges, 


SPEECH  ON  THE  JUDICIARY  89 

to  tell  me  why  they  do  not  trust  the  people  to  make 
our  laws?  You  do  not  do  it.  The  most  radical  man 
in  this  Convention  would  not  trust  the  people  to  make 
the  laws;  but  by  our  own  will  we  impose  upon  our 
selves  a  restraint.  In  the  exercise  of  judgment, 
prompted  by  humanity  and  a  sense  of  justice,  we  say 
we  will  make  no  laws  except  within  the  range  and 
limit  of  that  Constitution.  And,  further  than  that, 
we  not  only  take  care  to  say  that  we  do  not  intend  to 
do  it,  but  we  take  care  to  provide  against  any  possi 
bility  of  our  doing  it.  We  provide  a  tribunal  and  give 
it  the  power  of  deciding,  when  we  have  passed  a  law, 
whether  that  law  is  in  accordance  with  the  Constitu 
tion  or  not.  That  is  what  the  people  do  in  making  a 
Constitution;  and  when  it  is  made,  when  our  labors 
go  out  to  the  people  and  are  ratified  by  them,  the  peo 
ple  take  care  that  the  Constitution  shall  not  be  changed 
except  through  a  laborious,  complex,  and  difficult 
process. 

The  legislature  comes  together  every  year,  elected 
by  the  people,  and  makes  laws.  The  government  exe 
cutes  those  laws.  But  notwithstanding  all  that,  the 
poorest  man  in  the  Commonwealth  —  one  man  alone 
against  the  whole  people  of  Massachusetts  —  can  set 
those  laws  at  defiance  if  they  are  not  made  in  pursu 
ance  of  the  Constitution.  The  poorest  woman,  the 
alien,  the  infant  in  its  cradle,  is  protected  against  the 
will  of  the  majority  of  the  people  of  Massachusetts. 
The  foreigner,  whoever  he  may  be,  barbarian,  Scyth 
ian,  bond  or  free,  may  assert  and  maintain  a  consti 
tutional  right  against  the  will  of  the  majority  of  the 
people  of  Massachusetts. 

Now  I  ask  if  it  is  not  the  feature  that  distinguishes 
our  republican  government,  that  an  individual  has 


90  RICHARD  HENRY  DANA,  JR. 

; 

some  rights  against  the  powers  that  be  —  that  the 
minority  have  some  rights  against  the  majority  — 
that  one  man  has  rights  which  he  may  assert  against 
the  people?  That  is  the  great  and  honored  distinc 
tion,  and  how  are  you  to  preserve  it?  It  is  not  enough 
to  say  that  it  shall  be  preserved.  There  must  be  a 
power  to  preserve.  That  power  is  the  judiciary.  Every 
act  passed  by  the  legislature  must  undergo  the  scru 
tiny  of  that  tribunal,  and  if  it  is  not  in  pursuance  of 
that  higher  law  of  the  Constitution,  it  must  be  set 
aside.  And  for  that  reason,  chiefly,  I  wish  to  have 
that  judiciary  made  independent.  Does  not  the  es 
sential  theory  of  our  government  require  it?  It  must 
be  independent  of  the  executive,  otherwise  he  will 
execute  the  laws  as  he  pleases.  It  must  be  independ 
ent  of  the  legislature,  otherwise  they  will  make  such 
laws  as  they  please.  I  have  a  right  to  demand  that 
the  governor  shall  not  execute  such  laws  as  he  pleases, 
but  only  such  as  the  Constitution  allows.  I  have  a 

(ight  to  say  that  the  majority  of  the  people,  upon 
udden  popular  impulse,  shall  not  do  just  what  they 
hoose  to  do,  but  only  what  the  Constitution  allows. 
If  the  majority  of  the  people  of  Massachusetts,  by 
any  sudden  caprice  or  passion,  should  insist  upon 
taking   my  life   or  liberty  or  my  property,  without 
due  process  of  law,  I  wish  to  be  protected  against  it. 
Mr.  President:  I  can  protect  myself  against  one 
man,  alone.   The  majority  can  always  protect  itself, 
jbut  a  single  man  needs  to  be  protected  against  the 
^multitude.    The  minority  needs   protection  against 
the  majority.   And  how  can  that  be  had,  unless  you 
establish  a  tribunal  above  the  mere  will  of  the  ma 
jority?   If  you  constitute  the  supreme  court  as  that 
tribunal,  how  can  it  accomplish  that  purpose  unless 


SPEECH  ON  THE  JUDICIARY  91 

you  make  it  independent,  not  only  of  the  executive, 
but  of  the  legislature  and  of  the  temporary  will  of 
the  majority  of  the  people. 

I  have  heard  it  said,  and  I  think  it  has  been  said 
by  some  one  upon  this  floor,  that  our  ancestors,  John 
Adams,  John  Hancock,  and  those  who  made  the  Con 
stitution  of  1780,  blindly  followed  the  English  prece 
dent,  and  adopted  an  independent  judiciary  as  they 
found  it  in  England,  where  it  was  made  independent 
to  prevent  the  encroachments  of  the  crown,  and  that 
they  had  sought  to  make  it  independent  here,  where 
the  same  reason  does  not  exist.  Now,  sir,  I  undertake 
to  say,  not  upon  my  own  judgment  alone,  but  upon 
the  judgment  of  the  soundest  men  in  this  republic 
whoever  have  written  or  spoken  upon  this  subject, 
that  an  independent  judiciary  is  more  important  in  a 
republic  than  it  is  in  a  monarchy.  Sir,  I  repeat,  with 
out  fear  of  intelligent  contradiction,  that  an  independ 
ent  judiciary  is  more  important  in  a  republic  than 
in  a  monarchy.  And  why?  In  a  monarchy,  you  may 
always  appeal  from  the  sovereign  to  the  people.  In 
a  monarchy,  the  power  is  lodged  with  the  sovereign, 
and  you  may  always  appeal  from  him  to  the  people, 
even  if  the  judiciary  is  false.   But  I  ask  you,  in  this 
country,  where  the  people  are  sovereign,  to,  whom  is 
a  man   to  appeal   from    the   people?    Where    does 
an  appeal  lie,  this  side  of  Heaven,  from  the  majority^ 
of  the  people?    Suppose  a  popular  majority  carry 
through  the  legislature  a  law  which  infringes  upon 
the  rights   of  an  individual:    I  ask  any  gentleman 
to  tell  me  where  that  man's  appeal  lies  against  the 
will  of  the  popular  majority?    Sir,  it  lies  nowhere 
unless  we  can  have  a  judiciary  independent  of  the 
changes  of  a  popular  majority.   We  can  have  no  pro- 


92  RICHARD  HENRY  DANA,  JR. 

tection  for  the  Constitution  unless  we  make  inde 
pendent  our  guardian,  the  judiciary,  which  is  to  say 
whether  a  law  is  constitutional  or  not,  and  say  whe 
ther  the  executive  executes  that  law  constitutionally 
or  not.  If  we  go  from  hence,  not  leaving  behind  us 
an  independent  judiciary,  our  labor  in  this  Conven 
tion  is  in  vain. 

Having  spoken  of  the  history  of  this  institution 
in  England,  I  wish  to  call  the  attention  of  the  Con 
vention,  one  moment,  to  the  history  of  the  institution 
in  America.  In  1780  our  ancestors  adopted  their 
State  Constitution,  in  which  they  declared  it  was 
essential  that  the  judges  should  hold  their  offices  as 
long  as  they  behaved  themselves  well.  I  wish  to  know 
if  John  Adams  and  James  Bowdoin  and  John  Han 
cock,  who  made  the  Constitution  of  1780,  with  hal 
ters  about  their  necks,  followed  blindly  the  English 
precedent?  I  wish  to  know  if  they  did  not  feel,  as 
keenly  as  we  do  to-day,  that  they  were  exempt  from 
English  precedents?  They  did  understand  that  mat 
ter  fully.  They  knew  that  in  a  republic  there  was  no 
appeal  from  the  sudden  action  of  the  sovereign  peo 
ple,  unless  to  a  judiciary;  whereas  in  a  monarchy 
there  is  an  appeal  from  the  sovereign  to  the  people. 
They  knew  that  we  had  a  Constitution  which  the 
judiciary  must  pass  upon;  whereas  in  a  monarchy 
they  have  no  constitution  for  any  judiciary  to  pass 
upon.  For  these  two  reasons,  they  saw  that  it  was 
even  more  important  to  have  an  independent  judi 
ciary  in  a  republic  than  in  a  monarchy.  Such  is  the 
language  of  Chief  Justice  Marshall,  of  Story,  Kent, 
Hamilton,  Jay,  and  Madison. 

When  the  Constitution  of  the  Uftited  States  was 
formed,  the  resolution  giving  the  judges  a  tenure  dur- 


SPEECH  ON  THE  JUDICIARY  93 

ing  good  behavior  passed  by  an  unanimous  vote.  As 
much  as  they  differed  on  all  other  subjects,  when  they 
came  to  the  question  of  an  independent  judiciary  and 
the  good-behavior  tenure,  there  was  an  unanimous 
vote  of  the  Convention  in  its  favor.  That  system  has 
continued  from  that  time  to  the  present  day.  Such, 
too,  is  the  Constitution  of  New  Hampshire,  of  Con 
necticut,  and  of  many  other  states  of  the  Union.  In 
Rhode  Island,  it  is  substantially  the  same.  I  grant 
you  that  the  experiment  of  an  elective  judiciary,  for 
short  terms,  is  in  the  course  of  trial  in  several  states. 
It  has  not  yet  been  tried,  for  you  cannot  try  an  ex 
periment  of  this  sort  until  a  whole  generation  has 
grown  up  under  it.  That  has  not  been  done.  We 
have  grown  up  under  an  independent  judiciary.  Our 
noble  institutions  —  the  security  of  life,  liberty,  and 
property  here  —  have  been  acquired  under  an  inde 
pendent  judiciary.  The  experiment  of  a  ^pendent 
judiciary  has  not  been  tried  through  one  generation, 
or  anything  like  it.  It  has  been  tried  to  some  extent 
in  New  York  and  Maryland.  I  think  the  gentleman 
from  Natick  (Mr.  Wilson)  was  quite  right  in  saying 
that  judicious  persons  from  New  York  had  advised 
us  not  to  try  the  experiment  of  an  elective  judiciary 
in  Massachusetts. 

I  hold  in  my  hands  a  letter  from  an  eminent  lawyer, 
in  which  he  says:  "It  is  short  of  the  truth  to  say  that 
their  united  influence  (election  and  short  terms)  has 
brought  our  judiciary  into  decline  and  decay."  I  have 
another  letter,  from  one  of  the  most  distinguished 
men  of  the  United  States,  resident  in  Maryland,  who 
says:  "It  is  generally  admitted,  in  this  state,  I  be 
lieve,  that  the  change  in  our  system  has  altogether 
disappointed  the  promises  of  its  authors,  and  that  if 


94  RICHARD  HENRY  DANA,  JR. 

it  could  now  come  before  the  voters  of  the  state,  as 
an  isolated  question,  it  would  be  rejected  by  an  im 
mense  majority." 

There  are  gentlemen  in  this  Convention  who  have 
been  in  Maryland  "within  the  year  past,  and  who  can 
bear  testimony,  I  know,  to  the  correctness  of  this 
statement.  I  saw  an  article  in  the  New  York  "Even 
ing  Post,"  the  other  day,  in  favor  of  an  elective  judici 
ary,  which  spoke  volumes  of  warning  to  us.  The  writer 
was  in  favor  of  the  elective  judiciary  as  a  matter  of 
theory,  but  at  the  close  of  the  article  he  advised  the 
people  of  Massachusetts  to  be  careful  not  to  allow 
the  election  of  judges  to  come  at  the  same  time  with 
the  election  of  the  other  officers,  saying  that  that  had 
been  a  fatal  mistake  in  New  York,  and  that  the  con 
sequence  had  been  that  the  judiciary  had  fallen  into 
the  political  cauldron.  That  admission  is  inestima 
ble.  The  result  is  admitted.  The  judiciary  is  in  the 
political  cauldron.  The  reasons  assigned,  I  doubt.  I 
do  not  believe  that  the  judiciary  has  fallen  into  the 
political  cauldron  because  it  happens  to  be  chosen  on 
a  particular  day  of  the  year.  I  believe  it  is  the  in 
evitable  tendency  of  things,  certainly  in  a  state  like 
New  York,  and  will  be  the  tendency  of  things  almost 
everywhere.  You  recollect  that,  in  New  York,  when 
the  elective  judiciary  first  went  into  operation  the 
system  worked  very  well.  The  first  election  was  made 
irrespective  of  parties.  All  parties  came  forward  and 
nominated  a  mixed  ticket.  Nearly  all  the  old  judges 
were  reflected,  and  everybody  was  delighted.  The 
next  year  it  was  not  quite  so  well  managed;  the  next 
year  less  so;  and  now  the  system  has  fallen  helplessly 
into  the  great  cistern  —  and  the  well  is  deep  and  there 
is  nothing  to  draw  with.  The  reason  assigned  is  not 


SPEECH  ON  THE  JUDICIARY  95 

sufficient,  because,  for  the  first  two  years,  although 
elected  on  the  same  day  with  other  officers,  the  judges 
were  kept  clear  of  all  political  connection.  The  march 
of  political  parties  is  irresistible,  and  office  after  office 
has  fallen  before  that  march.  Although  I  am  yet 
young,  I  can  remember  the  time  when  the  removal 
of  postmasters  by  General  Jackson  was  considered 
an  enormity.  I  can  remember  when  the  removal  of 
custom-house  officers  was  considered  an  enormity. 
But  the  work  of  removal  from  office  has  gone  on  in 
creasing,  until,  at  last,  every  executive  officer  falls 
before  the  march  of  political  parties.  The  spoils  betf 
long  to  the  victors.  The  thirst  for  blood  has  come  on, 
and  is  not  to  be  slaked.  The  leviathan  is  not  so  tamed. 
Human  nature  is  not  to  be  thwarted  by  changing  the 
day  of  the  year  upon  which  you  are  to  elect  your 
officers.  All  officers  that  parties  can  control  fall  be 
fore  them.  How  were  the  trustees  of  Harvard  Col 
lege  to  be  chosen  by  the  legislature?  The  first  year 
they  were  chosen  irrespective  of  parties;  but  the  very 
next  year  the  dominant  party  met  in  caucus,  nomi 
nated  an  entire  ticket,  and  carried  it  through.  In  New 
York,  the  "  Evening  Post "  says  that  judges  have  fallen 
into  the  political  mill.  They  beg  in  New  York  that 
we  shall  not  elect  our  judges  on  the  seventh  day  of 
November,  for  fear  the  same  thing  will  happen  here. 
I  say,  make  it  surer  than  that.  Let  us  not  choose  them 
at  all,  and  so  we  must  be  safe. 

It  may  be  said  by  some  persons,  Why  should  it  not 
fall  into  the  political  mill?  I  think  sound  reasons  can 
be  given  why  it  should  not.  The  law  must  be  inde 
pendent  of  the  changes  of  the  popular  will,  because 
this  same  venerable  Constitution,  some  of  which,  I 
trust,  will  remain,  with  or  without  its  rust,  says:  "In 


96  RICHARD  HENRY  DANA,  JR. 

the  government  of  this  Commonwealth  the  legislative 
department  shall  never  exercise  the  executive  and 
judicial  powers,  or  either  of  them;  the  executive  shall 
never  exercise  the  legislative  and  judicial  powers, 
or  either  of  them;  the  judicial  shall  never  exercise  the 
legislative  and  executive  powers,  or  either  of  them, 

Ito  the  end  it  may  be  a  government  of  laws  and  not  of 

/  men." 

I  have  heard  arguments  made  on  this  floor  upon 
the  assumption  that  this  is  a  government  of  men,  and 
not  of  laws.  But  our  Constitution  says  it  is  a  govern 
ment  of  laws,  and  not  of  men.  I  have  heard  gentle 
men  speak  here,  under  these  sacred  auspices,  as  though 
whatever  a  majority  chose  to  do  at  any  time  was  the 
law  of  the  land.  If  so,  we  do  not  want  any  Constitu 
tion.  The  Constitution  is  designed  for  the  protection 
;of  individuals  and  minorities  against  majorities,  and 
therefore  it  is  that  the  judiciary  must  not  be  made 
Dependent  upon  the  popular  will.  One  party  and 
another  comes  up,  and  then  comes  the  third  party, 
that  sweeps  the  board.  But  these  changes- zausi  not 
affect- the  organic  law.  One  reason  why  they  would 
affect  the  organic  law  I  think  to  be  this  —  that  you 
wrould  inevitably  elect  party  judges.  That  has  been 
done,  and  it  will  be  done  again.  There  is  another  dan 
ger  I  apprehend  far  more  than  this,  and  which  has 
not  been  often  adverted  to.  Take,  for  instance,  the 
case  of  the  "Maine  Law,"  as  it  is  familiarly  called. 
Suppose  the  judges  of  the  supreme  court  were  equally 
divided  as  to  the  constitutionality  of  that  law.  One 
of  the  three  goes  out  of  office  at  the  end  of  this  year, 
and  the  people  of  Massachusetts  are  to  pass  upon  his 
reelection.  If  he  is  reflected  that  law  perishes,  but 
if  another  man,  of  a  different  opinion,  is  elected,  that 


SPEECH  ON  THE  JUDICIARY  97 

law  survives.  Earnest  men  will  say,  at  the  polls:  "  We 
admit  that  Judge  Doe  is  a  very  good  man,  a  very 
capable,  and  a  very  honest  man,  but  you  know  that 
he  believes  that  law  unconstitutional.  You  know  the 
terrible  consequences  of  intemperance,  and  how  it  is 
spreading  over  this  country.  You  know  that  it  burns 
up  human  habitations  faster  than  accident  or  crime 
burn  up  the  habitations  that  the  mechanic  rears. 
We  can  give  you  a  judge  just  as  honest,  just  as  ca 
pable,  just  as  learned,  whose  opinions  upon  that  sub 
ject  we  know  to  be  correct.  Now  every  vote  for  Judge 
Doe  is  a  vote  for  ruin,  though  he  is  a  good  man;  and 
every  vote  for  Judge  Roe  is  a  vote  for  temperance 
and  happiness  and  salvation."  How  is  that  argu 
ment  to  be  resisted?  It  will  not  be  resisted.  In  times 
of  great  popular  excitement  for  a  moral  cause,  or  any 
other  cause,  it  will  not  be  resisted.  Take  the  Fugitive 
Slave  Law.  Suppose  the  court  equally  divided  upon 
that  subject.  A  new  judge  is  to  be  elected.  Fugitive 
slave  cases  will  come  up  before  that  court  for  a  hear 
ing.  I  wish  to  know  if  the  people  will  not  wish  to 
ascertain  something  about  the  antecedents  of  their 
judges  upon  that  subject.  I  wish  to  know  whether 
they  will  vote  in  the  dark.  I  tell  you  nay.  The  votes 
will  be  given  for  principle,  and  not  for  men.  Yes, 
says  my  friend  opposite  (Mr.  Burlingame),  as  I  see 
by  the  nod  of  his  head,  he  is  ready  for  it  now.  That 
is  young  America.  "Principles,  and  not  men,"  will 
be  the  cry.  Furthermore,  the  choice  of  the  people 
will  be  considered  as  an  expression  of  the  law.  If  a 
majority  of  the  people  should  vote  for  that  judge, 
then  it  would  be  said  that  the  people  had  spoken, 
and  that  they  had  instructed  the  court,  and  that  the 
court  must  follow  the  voice  of  the  people.  I  do  not 


98  RICHARD  HENRY  DANA,  JR. 

know  but  that  the  argument  which  I  consider  to  be 
conclusive  against  the  change  will  operate  on  some 
minds  in  its  favor;  but  let  me  beg  every  gentleman, 
before  he  allows  himself  to  be  influenced  in  that  di 
rection,  to  consider  that  he  is  not  put  here  by  his 
Maker  to  carry  out  his  own  will  upon  the  earth.  The 
people  of  Massachusetts  were  not  put,  here  to  carry 
out  their  will  upon  the  earth.  We  were  put  here  to 
do  justice,  to  protect  the  weak,  to  resist  the  mighty, 
to  secure  to  each  his  right.  The  democratic  doc 
trine  that  I  know  anything  about,  and  that  I  respect, 
though  I  have  not  enrolled  myself  under  that  name, 
is  not  that  which  says  that  the  people  may  do  what 
I  they  can  and  will,  but  that  which  declares  every  man 
[I  equal  before  the  law,  and  that  he  should  have  his 
\^ight.  I  ask  professed  Democrats  here,  which  of  these 
two  is  the  democratic  doctrine:  that  every  man  may 
do  his  will,  and  that  the  majority  may  do  whatever 
they  can  and  will,  or  that  every  man,  even  the  hum 
blest,  has  his  rights,  and  that  under  the  Constitution 
all  men,  without  distinction  of  caste,  condition,  pro 
perty,  or  education,  are  equal,  and  that  they  all  shall 
nave  their  due  before  the  law.  We  can  now  protect 
the  rights  of  every  man  by  saying  to  him,  you  have 
a  tribunal,  and  if  the  multitude  pursues  you,  you  can 
flee  to  the  horns  of  the  altar  and  lay  hold  thereon. 
Although  the  avenger  of  blood  may  pursue  you,  and 
the  multitude  follow  hard  after  you,  lay  hold  for  your 
life  on  the  horns  of  the  altar.  We  will  give  you  a  tri 
bunal  which  shall  protect  you  until  the  danger  be 
overpast.  That  I  understand  to  be  the  genius  of  our 
Constitution,  and  therefore  it  is,  I  say,  that  the  ju 
dicial  office  should  not  be  blown  about  by  every  wind 
of  doctrine.  Therefore  it  is  that  the  people,  by  a 

\ 


SPEECH  ON  THE  JUDICIARY  99 

transient  vote  of  the  majority,  should  not  settle  the 
law.  They  may  make  their  law  through  the  legisla 
ture,  but,  with  the  Constitution  in  my  hand,  I  can 
say  to  the  poorest  and  humblest  man,  —  the  poor 
trembling  African,  to  the  foreigner,  who  has  first 
landed  on  our  shores,  and  who  does  not  know  his  way 
through  the  streets  of  the  city,  and  does  not  know 
the  elements  of  our  constitutional  law,  —  I  can  say 
to  him:  "You  have  come  to  a  country  where  no  man 
can  oppress  you,  where  the  government,  where  the 
legislature,  and  where  the  people  itself  cannot  op 
press  you.  If  a  sudden  movement  of  popular  opinion 
should  turn  against  you,  and  you  should  become 
odious,  or  stand  in  the  way  of  their  will  or  their  in 
terests,  you  may  come  to  my  humble  office,  and,  with 
a  piece  of  paper  no  bigger  than  a  man's  hand,  I  can 
set  at  defiance  a  majority  of  thousands  of  the  people 
of  Massachusetts.  I  can  point  to  the  Constitution. 
I  can  go  to  the  tribunal  and  assert  your  rights." 
"Aye,"  says  my  client,  "you  may,  but  how  do  I 
know  that  that  tribunal  will  assert  it?"  My  answer 
is:  "I  admit,  a  tribunal  would  be  of  no  use,  unless 
it  has  power.  It  has  the  arm  of  the  executive,  it  has 
the  whole  arm  of  the  State  to  enforce  its  decrees." 
"But,"  says  my  poor  client,  "that  is  not  enough. 
How  do  I  know  they  will  sustain  that  Constitution 
against  a  popular  majority?  How  do  I  know  they  will 
sustain  it  against  the  legislature?  Your  legislature 
has  passed  a  law  abridging  my  liberty  and  taking 
away  my  property,  and  the  people  are  bent  upon  exe 
cuting  it,  and  at  once.  How  do  I  know  that  your 
tribunal  will  stand  against  it?"  I  can  give  but  one 
answer.  I  can  say:  "The  men  who  formed  this  Con 
stitution  —  wise,  noble  men  —  said  it  was  essential 


100  RICHARD  HENRY  DANA,  JR. 

to  the  preservation  of  the  life  and  liberty  of  each  man, 
that  he  should  be  tried  by  a  tribunal  as  impartial  and 
independent,  as  the  lot  of  humanity  will  permit. 
Therefore  they  say,  'The  judges  should  hold  their  of 
fices,  so  long  as  they  behave  themselves  well.'"  I  say 
to  him,  that  I  admit  it  is  said,  that  a  man  who  con 
trols  the  subsistence  of  a  man  may  control  his  will; 
and  we  have  provided  that  the  salaries  of  these  judges 
cannot  be  touched  while  they  are  in  office.  I  admit 
that  whoever  can  turn  a  man  out  of  his  office  may 
control  his  will,  —  not  must  control  it,  but  may. 
Now,  I  say  to  the  poor  trembling  suitor:  "These  men, 
whom  you  see  before  you,  hold  their  offices  so  long 
as  they  behave  themselves  well;  they  cannot  be  re 
moved,  nor  can  they  in  any  way  be  affected  in  their 
« arsons,  property,  hopes  or  fears,  for  their  decision 
your  case." 

But,  if  I  had  to  say  to  him,  here  are  these  five  judges, 
I  hope  they  will  do  you  justice,  I  believe  they  will, 
and  I  pray  that  they  may;  but  I  know,  that  two  of 
them  are  candidates  for  reelection  to-morrow,  and 
party  excitement  runs  high,  and  the  feeling  is  very 
strong  in  the  community;  or  if  I  had  to  say,  that  the 
Convention  which  had  lately  been  in  session  had 
provided  that  these  judges  should  depend  for  their 
reappointment  upon  the  executive,  and  he  should  ask 
me,  how  is  the  governor  disposed?  I  must  tell  him, 
that  the  governor  agrees  in  his  views  with  the  people. 
The  bill  has  been  passed  by  the  legislature  and  the 
governor  has  signed  it,  and  he  is  to  appoint  one  judge 
to-morrow,  and  the  next  day  he  is  to  recommission 
another  or  not,  just  as  he  may  see  fit.  Now,  I  could 
not  say  to  that  man  that  he  had  as  independent  a 
tribunal  as  the  lot  of  humanity  would  permit.  I  want 


SPEECH  ON  THE  JUDICIARY  101 

to  say  to  him  that  all  the  law  can  do  to  make  the 
tribunal  independent  and  impartial  has  been  done. 
I  do  not  say  that  it  will  then  be  impartial.  Our  judges, 
now,  may  not  be  impartial.  They  may  be  governed 
by  social  feelings,  and  to  some  extent  they  are.  They 
may  be  governed  by  the  influence  of  a  clique  to  which 
they  belong.  That  may  be  true;  and  so  it  will  be  under 
any  system.  That  is  human  nature.  Our  Constitu 
tion  has  not  said  that  every  man  shall  be  tried  by  an 
angelic  tribunal;  nor  that  every  man  shall  be  tried  by 
a  superhuman  tribunal;  but  by  a  human  tribunal, 
as  impartial  as  the  lot  of  humanity  will  permit.  I 
cannot  warrant  judges  against  personal,  social,  and 
party  feelings;  but  for  that  very  reason,  I  do  not 
want  to  add  another  and  a  certain  operation  of  a 
power  over  his  subsistence  or  his  office. 

And  when  this  man  has  stood  before  our  tribunal 
without  fear,  as  far  as  a  man  can  be  without  fear  be 
fore  his  fellow  men,  and  when  he  has  gone  away  with 
justice  done  to  him  against  the  popular  will;  when 
that  tribunal,  standing  higher  than  anything  this 
side  heaven,  making  the  most  noble  exhibition  that 
humanity  can  make,  —  protecting  the  right  of  a  sin 
gle  man  against  power,  —  when  that  has  been  done, 
I  turn  to  my  grateful  client  and  say:  "Now,  I  wish 
you  to  acknowledge  that  the  old  Commonwealth  of 
Massachusetts  deserves  some  gratitude  for  a  ^self- 
imposed  restraint.  When  the  people  of  Massachusetts "~ 
might  have  made  a  law  which  would  have  walked 
right  over  you;  when  the  people  of  Massachusetts 
might  have  provided  that  there  should  be  no  tribunal 
and  no  Constitution,  and  nothing  but  the  action  of 
the  public  will;  when  they  might  have  mocked  you 
with  a  tribunal  dependent  upon  the  will  of  that  very 


102  RICHARD  HENRY  DANA,  JR. 

majority  against  which  you  are  to  be  protected;  when 
they  might  have  mocked  you  with  a  tribunal  depend 
ent  upon  that  very  executive  against  whose  enforce 
ment  you  are  to  be  protected,  they  have  restrained 
themselves,  and  said,  —  In  order  that  justice  may  be 
done  to  the  weakest  —  in  order  that  in  any  moment  of 
excitement,,  in  any  hour  of  frenzy  or  mistake,  we  may 
not  touch  the  hair  of  the  head  of  the  humblest  man,  we 
will  give  him  a  tribunal  which  shall  be  independent  of 
the  fluctuations  of  our  opinions  or  passions. 

Having  shown,  gentlemen,  why  we  should  have  an 
independent  judiciary,  let  them  point  to  me  one  sin 
gle  reason  why  we  should  make  the  change.  There 
is  no  popular  demand  for  it,  and  there  has  been  not 
one  single  case  of  complaint.  We  have  the  power  of 
impeachment.  How  many  judges  have  been  im 
peached  in  this  State?  Not  one,  in  my  day.  Has  a 
judge  been  removed  by  the  legislature?  But  one, 
and  none  in  my  day.  What  does  that  indicate?  It 
indicates  that  it  has  not  been  found  necessary.  And 
what  does  that  indication  prove?  It  proves  that  we 
have  had  a  tribunal  as Jmp artiaL&s  Jjjie.  Jot  .of  human 
ity  will  permit.  Our  judges,  let  gentlemen  bear  in 
mind,  are  not  irresponsible.  They  may  be  impeached; 
they  may  be  removed  by  a  vote  of  the  legislature. 
Do  gentlemen  recollect  that,  at  this  moment,  it  re 
quires  no  more  power  to  remove  a  judge  of  the  su 
preme  court,  than  it  does  to  change  a  man's  name; 
that,  on  a  vote  of  the  two  branches  of  the  legislature, 
the  governor  can  remove  a  judge  of  the  supreme 
court;  that  a  conviction  in  one  tribunal,  after  impeach 
ment  by  another,  may  remove  him  from  all  office 
forever?  What  more  responsibility  do  gentlemen 
want?  It  is  not  a  question  of  responsibility.  It  is  a 


SPEECH  ON  THE  JUDICIARY  103 

question  of  dependence.  Now  I  admit,  freely,  that  all 
these  gentlemen  who  hold  that  there  ought  to  be  no 
constitution  practically;  that  there  ought  to  be  no 
tribunal  independent  of  the  changes  of  the  popular 
will,  —  they  ought  to  support  an  elective  judiciary, 
and  the  sooner  the  better,  and  make  them  elective 
not  once  in  ten  years,  but  every  year.  They  cannot 
stop  short  of  that. 

Tyranny  is  simple.  It  is  as  simple  as  the  rule  of 
three.  But  these  complex  governments  in  which  lib 
erty  exists  are  not  to  be  made  or  changed  easily.  They 
grow.  Institutions,  as  was  said  by  the  gentleman  frqm 
Marshfield  (Mr.  Sumner),  grow  out  of  men,  and  arOT-x^ 
not  imposed  upon  men.  Now,  this  institution  has 
been  hundreds  of  years  in  growing.  We  have  lived 
under  it  to  this  day  and  without  any  complaint.  I 
must  take  the  liberty  to  say  that  if  this  Convention 
were  to  destroy  this  system  with  no  complaint  made 
against  it,  and  should  rush  out  upon  the  road  of  ex 
periment,  possessed  by  a  mere  theory,  when  there  is 
no  abuse  to  be  remedied,  it  will  be  the  rashest  act 
that  a  sober  community  ever  committed. 

I  wish  to  say  to  this  Convention  that  the  judiciary 
is  the  feeblest  department  of  the  government,  and 
needs  protection.  It  is  the  feeblest  department  of  the 
government.  So  say  Hamilton,  and  Jay,  and  Madi 
son;  so  says  Marshall,  so  says  Story,  so  say  Kent  and 
Rawle  and  all  the  writers  on  the  Constitution.  And 
is  not  that  perfectly  plain?  What  is  the  judiciary? 
It  passes  upon  private  questions  between  man  and 
man.  It  interprets  the  laws.  The  powerful  depart 
ment  of  the  government  is  that  which  makes  the  laws. 
The  legislature  holds  the  purse ;  the  legislature  creates 
offices;  the  legislature  establishes  the  compensation; 


104  RICHARD  HENRY  DANA,  JR. 

and  in  the  legislature,  distinction,  conspicuity,  and 
political  power  are  to  be  acquired.  But  the  judiciary 
creates  no  offices;  the  judiciary  fixes  no  compensation; 
the  judiciary  makes  no  laws.  It  has  merely  a  voice 
and  a  head;  it  has  no  arm;  it  has  no  purse;  it  has  no 
will.  The  legislature  has  a  will,  and  the  executive  has 
an  arm;  but  the  judiciary  has  neither  power  nor  will; 
it  can  only  pronounce.  When  it  has  pronounced,  it 
can  only  throw  itself  upon  the  executive  to  execute 
its  decrees. 

The  judiciary  is  not  the  popular  branch.  It  does 
its  business  in  quiet  and  stillness,  and  with  but  little 
conspicuity.  The  legislature  is  the  place  where  all 
men  go  who  are  bound  on  a  course  of  popular  prefer 
ment,  and  who  wish  to  stand  high  in  the  popular  af 
fections.  The  judiciary  has  no  strength  except  in  the 
public  confidence  and  in  its  own  integrity. 

Many  persons  have  been  prejudiced  against  the  pre 
sent  system  of  the  judiciary  because  of  events  which 
have  occurred  in  our  own  State  within  the  last  three 
years.  Many  have  sat  uneasily  under  the  existing 
system,  for  they  have  thought  that  the  judgments 
of  the  court  have  been  construed  against  what  they 
considered  —  and  I  agree  with  them  —  the  true  in- 
iterpretation  of  the  Constitution  on  the  subject  of 
•fugitive  slaves. 

Now,  I  take  it  upon  myself  to  say  that  I  suffered 
as  much  in  my  feelings  as  any  man  under  those  de 
cisions  of  the  Supreme  Court  of  Massachusetts,  and 
of  the  Circuit  Court  of  the  United  States.  I  thought 
them  then,  and  I  think  them  now,  wrong.  I  say  this 
with  diffidence,  after  decisions  in  such  places.  But 
I  can  truly  say  that  in  my  greatest  distress  there  was 
one  drop  of  comfort  left  me.  I  knew  that  those  de- 


SPEECH  ON  THE  JUDICIARY  105 

cisions  came  from  men  who  were  not  making  them 
for  their  judicial  lives.  I  knew  that  they  came  from 
men  who  were  not  making  them  because  their  offices 
or  salaries  depended  upon  their  making  them. 

I  felt  that  we  had  a  tribunal,  not  entirely  impartial, 
—  I  cannot  say  that,  because  it  was  a  human  tribu 
nal,  —  but  a  tribunal  for  which  the  law  had  done  all 
it  could  do  to  make  it  impartial.  I  knew,  and  I  won 
der  other  gentlemen  do  not  remember,  that  had  those 
judges  been  elected,  we  should  have  stood  no  better 
chance  than  we  did  then;  for  the  popular  majority 
was  against  us.  Had  these  judges  known  they  would 
be  obliged  to  go  through  a  popular  election  the  next 
week,  I  wish  to  know  if  we  should  have  argued  our 
causes  with  any  more  confidence  on  that  account. 
No,  Sir;  the  confidence  felt  in  going  before  these  judges 
was  this;  and  it  was  of  unspeakable  comfort  to  me, 
that  I  had  a  tribunal  as  independent  as  the  law  could 
make  it.  When  this  alarm,  this  fear  —  and  fear  is  al 
ways  cruel  and  always  unjust  —  was  spreading  over 
the  country;  when  political  parties  and  great  leaders 
thought  it  necessary  to  take  a  certain  position;  when 
men  thought  that  the  Union  and  the  shoe  trade,  and 
I  do  not  know  how  many  other  things,  were  in  peril, 
and  certain  things  must  be  done,  I  felt,  Mr.  President, 
the  comfort  of  knowing  that  these  judges  held  their 
offices  and  their  salary,  utterly  irrespective  of  these 
popular  determinations.  Gentlemen  are  fond  of  talk 
ing  as  if  the  people  were  always  in  the  right.  Now 
I  have  not  lived  long,  but  it  has  been  my  misfortune 
not  always  to  have  thought  them  in  the  right;  and  I 
submit  to  gentlemen  who  have  sustained  the  demo 
cratic  doctrine  in  this  State  through  these  long  years 
of  defeat,  up  to  this  day,  whether  they  have  always 


106  RICHARD  HENRY  DANA,  JR. 

thought  the  people  right.  I  ask  the  Whig  party,  who 
have  gallantly  maintained  their  position  before  the  na 
tion,  —  beaten  three  times  out  of  four,  —  whether  they 
have  thought  the  people  always  right.  I  submit  to 
my  own  associates  whether  they  have  thought  the 
people  of  the  nation,  or  of  this  State,  always  right 
on  the  great  question  of  resistance  to  the  spread  of 
slavery  and  the  slave  power.  No,  Sir;  this  always 
has  been,  and  always  will  be  the  case,  that  among  all 
the  changes  of  the  government,  and  changes  of  popu 
lar  opinion,  the  public  is  sometimes  unjust.  No  man 
has  considered  his  own  nature  well,  without  feeling 
that  he  has  something  within  him  to  satisfy  him  that 
he  ought  not  to  be  trusted  with  arbitrary  power. 

Is  there  one  man  here  who  in  a  moment  of  resent 
ment,  in  a  moment  of  passion,  in  a  moment  of  sup 
posed  insult,  has  not  thanked  God  that  he  was  not 
possessed  of  arbitrary  power?  I  suppose  every  man 
feels  the  necessity  of  self-restraint;  and  if  he  cannot 
restrain  himself,  he  thanks  God  for  putting  some 
body  over  him  who  can  restrain  him.  So  it  is  with 
the  good  people  of  Massachusetts.  They  know  that 
they  cannot  trust  themselves  with  arbitrary  power, 
and,  therefore,  they  make  a  Constitution  which  will 
restrain  them.  They  know  that  they  can  neither  trust 
the  legislature  nor  the  executive  with  arbitrary  power, 
and  therefore  they  make  a  tribunal  to  decide  whether 
they  have  acted  in  accordance  with  their  general  will, 
and  done  nothing  which  it  was  not  their  general  will 
should  be  done.  So  it  is  with  an  individual.  He  may 
have  a  general  will  to  serve  God,  and  a  special,  tem 
porary  will  to  do  wrong  when  a  temptation  presents 
|itself ;  but  his  desire  is  that  his  special  and  temporary 
;  will  shall  be  overruled  and  restrained,  so  that  his 


SPEECH  ON  THE  JUDICIARY  107 

conduct  may  conform  to  his  general  will.  Now  the 
general  will  of  the  whole  people  is  expressed  in  the 
Constitution;  but  there  may  be  some  act  of  the  legis 
lature,  some  sudden  freak  of  the  executive,  contrary 
to  that  general  will.  We,  therefore,  wish  to  get  such 
a  faithful  witness  to  this  our  general  will,  as  shall 
protect  every  man  against  the  consequences  of  what 
we  or  our  servants  may  do,  in  a  moment  of  rash 
ness. 

I  have  trespassed  very  much  on  the  patience  of 
this  Convention,  and  I  will  now  merely  say  a  few 
words  in  relation  to  this  matter  of  reappointment. 
I  have  said  all  that  I  propose"  to  say  now,  upon  the 
subject  of  an  elective  judiciary,  for  I  do  not  conceive 
that  on  that  point  we  are  in  any  very  serious  peril 
in  this  Convention.  Gentlemen  may  be  disposed  to 
say,  if  we  cannot  make  judges  elective,  we  will  make 
them,  in  some  manner,  dependent  upon  the  executive 
for  their  term.  I  wrish  to  ask  those  gentlemen  who 
are  in  favor  of  an  elective  judiciary,  what  they  have 
to  say  to  this  proposition  of  the  gentleman  from  Na- 
tick.  What  kind  of  a  proposition  is  it?  In  how  many 
states  of  the  Union  has  the  experiment  been  tried, 
of  having  their  judges  hold  office  for  ten  or  seven 
years,  and  then  be  reappointable  by  the  executive? 
There  may  be  some  such,  but  I  do  not  know  of  any 
myself.  Upon  what  principle  does  it  rest?  I  can  very 
well  understand  upon  what  principle  an  elective  ju 
diciary  rests,  but  I  cannot  so  easily  understand  upon 
what  principle  you  base  the  doctrine  that  the  judges 
are  to  be  made  dependent  upon  the  executive.  Why, 
Sir,  I  thought  that  gentlemen  were  afraid  that  the 
executive  had  too  much  power  and  patronage;  and 
we  have,  therefore,  been  stripping  the  executive  of 


108  RICHARD  HENRY  DANA,  JR. 

the  power  of  appointment  of  numerous  minor  offices. 
Yet  we  are  now  asked  to  clothe  him  with  the  power, 
every  year,  to  appoint  a  judge  of  the  Supreme  Court, 
and  to  reappoint  him  at  his  pleasure.  I  do  not  un 
derstand  how  this  is  carrying  out  the  principle,  that 
"because  the  power  of  the  executive  has  increased, 
and  is  increasing,  it  ought,  therefore,  to  be  dimin 
ished."  I  ask  those  gentlemen  who  stood  by  the  Re 
port  and  Address  of  the  Free  Soil  Committee,  only 
nine  months  ago,  —  nay,  not  so  much,  not  nine,  less 
than  five  months  ago,  —  which  declares  that  the 
power  and  patronage  of  the  executive  must  be  di 
minished,  with  what  face  they  can  come  here  and 
advocate  the  clothing  of  the  executive  with  this  tran 
scendent  power,  which  I  do  not  know  that  a  state  in 
the  Union  has  clothed  him  with.  The  executive  desig 
nates  and  nominates  the  judge  now,  but  after  he  is 
so  nominated  and  appointed,  he  is  entirely  out  of  its 
control.  I  say  it  is  of  little  consequence  who  appoints, 
if  the  appointment  is  made  by  an  intelligent  body, 
provided  the  judges  hold  by  an  independent  tenure. 
I  cannot  see  any  fatal  objection  to  the  judges  being 
elected  by  the  people  in  the  first  instance,  if  they  are 
to  be  independent  of  the  changes  in  the  public  will, 
and  responsible  only  for  misbehavior,  although  I  think 
a  judge  is  the  better  for  not  having  been  through  a 
political  campaign,  and  not  being  connected  with  its 
issues.  I  assure  every  gentleman  here,  that  I  will  go 
to  the  fullest  extent  to  make  a  judge  responsible  to 
the  people,  if  any  charge  of  misconduct  can  be  brought 
against  him.  I  will  consent  to  anything  that  is  judi 
cious,  if  your  power  of  impeachment  and  address 
does  not  make  them  sufficiently  responsible.  It  is  the 
fact  of  a  judge's  looking  to  a  reappointment,  that 


SPEECH  ON  THE  JUDICIARY  109 

makes  the  danger.  I  do  not  see  that  the  danger  is  very 
much  affected  by  the  question  whether  they  look  to 
the  executive  who  sits  in  that  chamber,  or  look  to  a 
party  caucus  that  meets  somewhere  in  School  Street, 
or  State  Street,  for  their  reappointment.  Whether, 
as  the  fatal  day  approaches,  his  friends  besiege  the 
doors  of  the  ante-room  for  a  week  or  a  month  before 
hand,  while  he  is  expected  to  sit  all  unconscious,  on 
his  bench,  "as  impartial  as  the  lot  of  humanity  ad 
mits,"  or  whether  they  take  by  the  buttonhole  the 
members  of  the  State  Central  Committees.  I  cannot 
see  that  there  is  much  to  choose  between  them.  Gen 
tlemen  who  suppose  that  our  judges  would  stand  just 
as  they  have  stood,  are  mistaken,  in  my  judgment; 
for  the  chance  of  reappointment,  or  the  chance  of  re 
election,  will  depend  very  much  on  their  decisions. 

The  people  and  the  political  parties  will  be  gov 
erned  in  that  matter  by  these  considerations.  The 
executive  will  be  elected  by  a  party.  That  party  has 
principles,  —  I  do  not  mean  the  low  purposes  of 
party,  but  the  great  principles  of  party,  —  and  those 
men  who  have  got  principles  are  the  dangerous  men 
of  whom  I  am  afraid.  I  am  not  afraid  of  the  rogues; 
I  am  not  afraid  of  the  camp-followers,  who  hang  about 
parties;  but  it  is  the  party  that  has  great  principles 
to  carry  out,  that  gets  excited  and  loses  its  balance, 
and  when  the  moment  of  election  comes,  and  the 
whole  community  is  stirred  up,  then  I  am  afraid  that 
the  calm  and  quiet  retreat  of  the  judiciary  will  be 
invaded. 

I  see  that  my  friend  from  Fall  River  (Dr.  Hooper) 
is  making  out  a  recipe  against  me;  but  I  want  him  to 
understand  that  I  am  only  afraid  of  party  principle 
because  it  will  operate  in  giving  direction  to  the  laws 


110  RICHARD  HENRY  DANA,  JR. 

of  the  land,  whereas  the  laws  of  the  land  should  stand 
far  above  all  such  influences  as  those  of  party  prin 
ciple.    The  law  should  rest  upon  fundamental  prin 
ciples,  should  be  given  out  wholly  irrespective  of  the 
Idivisions  of  party.   The  law  is  a  science.   The  judges 
are  professors  of  a  science.   Their  own  will  must  not 
intervene.    The  will  of  popular  majorities,  unless  in 
the  form  of  laws  constitutionally  made,  should  not 
intervene. 

I  do  beseech  gentlemen  not  to  be  deluded  by  the 
arguments,  that  if  you  cannot  get  an  elective  judi 
ciary,  you  must  take  all  that  you  can  get;  because, 
in  this  case,  you  have  got  to  take  a  very  different 
sort  of  thing  from  what  you  wish.  What  gain  is  it  to 
popular  power,  or  the  popular  principle,  that  the 
judge  holds  for  ten  years,  with  a  transaction  at  the 
end  of  that  time  between  himself  and  the  governor, 
instead  of  holding  independently  during  good  behav 
ior,  averaging  thirteen  years  ?  You  increase  the  execu 
tive  power,  and  create  a  feeling  of  dependence  and  a 
risk  of  partiality,  for  no  adequate  compensation.  The 
tables  show  us  that  the  judges'  tenures  average  only 
thirteen  years,  allowing  for  deaths  and  resignations. 
The  governor  would  have,  in  doubtful  cases,  the  control 
of  a  majority  of  the  Supreme  Court  every  year.  He  will 
appoint  a  judge  every  year,  and  that  may  turn  the 
majority  in  close  cases.  So  you  will  have  a  supreme 
court  with  the  majority,  in  the  balanced  cases,  in  the 
hands  of  the  governor.  If  there  is  a  new  judge  to  be 
made,  he  must  find  him;  if  there  is  a  judge  to  be  re- 
appointed,  he  has  to  reappoint  him  or  not,  at  his 
option.  In  ordinary  cases,  I  doubt  not  that  judges 
would  be  appointed  according  to  their  behavior;  but, 
in  the  highest  tribunals,  judges  would  be  appointed, 


SPEECH  ON  THE  JUDICIARY  111 

eventually,  according  to  their  opinions.  They  must 
have  their  platforms,  and  they  will  have  their  plat 
forms,  and  we  shall  have  the  mortifying  exhibition 
of  our  judges,  or  their  friends,  at  the  door  of  that  execu 
tive  chamber,  petitioning  for  reappointments.  Now, 
Sir,  I  do  not  want  to  make  them  dependent  upon  the 
changes  of  popular  elections,  either  upon  one  man  or 
a  dozen  men,  I  do  not  think  it  makes  a  great  deal 
of  difference  which.  This  principle, —  I  call  it  a  prin 
ciple,  out  of  respect  to  my  friend  from  Natick,  - 
this  experiment,  which,  I  believe,  he  is  almost  the 
first  if  not  the  very  first  to  embark  in,  is  putting  the 
judicial  department  substantially  under  the  control 
of  the  executive  department. 

MR.  WILSON.  I  will  inform  the  gentleman  that  he 
will  find  the  same  thing  in  Maine  and  in  several  other 
states  of  this  Union. 

MR.  DANA.  "Several  states."  That  is  rather  in 
definite.  There  are  thirty-one  states  in  the  Union, 
and  three  makes  several !  and  I  am  told  there  are  but 
three  out  of  thirty-one.  It  is  founded  upon  a  viola 
tion  of  principle.  Our  Constitution  says  that  the 
departments  shall  be  distinct  —  no  one  department 
"shall  exercise  the  power  of  another."  Our  ancestors 
never  even  dreamed  that  we  would  give  the  head  of  one 
department  power  over  another.  They  never  supposed 
that  in  the  course  of  affairs  it  would  ever  happen  that 
one  department  would  be  bound,  hand  and  foot,  and 
delivered  over  to  another.  They  thought  it  quite 
enough  to  provide  that  one  department  should  not 
exercise  the  powers  of  any  other.  "The  executiv4 
shall  never  exercise  legislative  or  judicial  powers,  or 
either  of  them."  But  they  can  do  it  indirectly,  if  your 
judges  are  to  be  dependent  upon  the  executive  for 


RICHARD  HENRY  DANA,  JR. 

reappointment.  I  maintain,  therefore,  that  if  you 
adopt  the  experiment  of  the  gentleman  from  Natick, 
you  will  violate  the  great  substantial  principle  of  this 
government,  in  relation  to  these  three  departments. 
If  you  make  the  judges  dependent  for  their  reappoint 
ment  upon  the  executive,  how  can  you  tell  where 
that  dependence  begins  or  where  it  will  end?  Gen 
tlemen  may  say  that  they  will  not  be  influenced;  but 
you  cannot  tell  how  far  they  will  be  influenced,  and 
the  great  difficulty  is,  that  the  judges  themselves 
cannot  always  tell  whether  they  are  influenced  or  not. 
I  have  no  doubt  that  in  such  circumstances  most 
judges  will  pronounce  decisions  which  they  believe 
to  be  impartial,  but  they  do  not  know  themselves. 
It  is  tempting  Providence.  This  self-deception  is 
one  of  the  most  subtle  and  most  easily  besetting  sins 
incident  to  humanity.  If  you  make  the  judges  de 
pendent,  you  will  not  discover,  and  they  will  not 
discover,  what  an  influence  this  has  upon  their  in 
most  thoughts  and  feelings.  If  the  office  were  not 
a  desirable  one  the  judge  would  not  have  accepted 
it.  Will  not  this  feeling  increase  and  strengthen  with 
the  time  in  which  he  should  hold  the  office?  I  submit 
to  every  gentleman  upon  this  floor,  if,  after  a  man 
has  held  an  office  for  ten  years,  a  reappointment  is 
not  eminently  desirable.  Suppose  a  man  takes  an 
appointment  at  the  age  of  fifty,  and  holds  it  until  the 
age  of  sixty,  and  then  goes  back  to  his  profession. 
You  put  the  salaries  so  low  that  a  man  cannot  lay  up 
anything.  He  goes  back  to  his  profession,  and  he 
finds  himself  incapacitated,  as  it  were.  His  hand  is 
out.  Competitors,  younger  and  more  energetic,  have 
entered  the  field  and  have  gathered  the  business  into 
their  garners.  His  old  clients  are  gone.  Imagine  such 


SPEECH  ON  THE  JUDICIARY  113 

a  man  going  back  into  his  profession,  his  head  whit 
ened  by  the  snows  of  threescore  winters,  competing 
at  the  bar  with  the  young  and  middle-aged,  with  the 
advantage  of  ten  years'  daily  practice  on  their  side. 
This  judicial  office  is  a  peculiar  one.  You  cannot  get 
a  man  to  take  it  as  he  would  an  executive  or  legis 
lative  office.  The  judge  must  study  a  long  time  to 
qualify  himself  for  its  duties;  and  if  he  is  thrown  out, 
he  must  begin  the  world  anew  on  a  little  chamber 
practice,  for  he  cannot  ordinarily  resume  the  active 
duties  of  the  profession.  Thus,  Sir,  his  office  is  a  de 
sirable  one,  and  he  knows  it,  and  his  family  know  it, 
and  his  friends  know  it.  Suppose  he  looks  to  the  gov 
ernor  for  reappointment.  As  the  day  approaches, 
his  mind  naturally  looks  forward  to  that  time  and 
dwells  upon  it.  As  it  comes  nearer  and  nearer,  it  en 
larges  until  it  fills  the  whole  horizon.  This  idea  is 
something  which  cannot  be  set  at  naught.  It  will 
have  more  influence  upon  some  than  upon  others, 
but  you  are  bound  to  remove  all  such  temptations 
from  their  path.  There  is  nothing  else  in  the  whole 
range  of  subjects  which  we  have  discussed,  whether 
the  plurality  system  or  the  majority  system,  the  execu 
tive  council,  the  town  system  of  representation,  or 
the  district  system,  upon  which  you  may  not  experi 
ment  more  safely  than  upon  this.  Do  not  experiment 
upon  the  impartiality  of  your  judges.  Do  not  ex 
periment  to  see  how  much  temptation  they  can  with\ 
stand,  with  their  office  and  salary  on  the  one  hanta 
and  conscience  on  the  other! 

I  ask  if  anybody  has  petitioned  us  that  this  experi 
ment  might  be  tried?  Has  anybody  complained  of 
anything  wrong?  Oh!  save  your  judges  from  this 
humiliation  —  save  them  from  temptation !  Save 


114  RICHARD  HENRY  DANA,  JR. 

from  distressing  doubts  and  suspicions  the  men  who 
go  to  them  for  justice!  I  cannot  conceive  of  a  distress 
more  cruel  than  that  of  a  client  whose  life  and  all  is 
at  stake,  with  a  doubt  resting  upon  his  mind  as  to  the 
impartiality  of  the  tribunal.  That  doubt  of  the  impar 
tiality  of  the  final  tribunal  will  be  a  doubt  that  will 
try  all  the  institutions  of  this  country.  Save  the  client 
from  that  doubt !  Banish  from  his  mind  the  constant 
impression,  as  he  looks  over  the  faces  of  those  five 
judges:  "You,  Sir,  next  year,  are  to  be  reappointed 
by  such  a  party,"  and  "you,  Sir,  this  year,  must  be 
reappointed  by  such  a  party,"  and  "I  am  standing 
upon  the  very  platform  which  that  party  has  de 
nounced  —  I  hold  the  opinions  which  that  party  is 
sworn  to  overthrow!"  The  first  thing  that  I  should 
wish  is,  that  all  the  citizens  should  feel  perfectly  se 
cure  from  that  doubt;  and  in  the  day  of  our  great 
extremity,  if  it  should  ever  come,  let  us  be  able  to 
thank  the  old  Commonwealth  that  she  has  saved  us 
from  that  distress.  You  have  only  to  stand  where  you 
are,  and  you  secure  it.  Why  not  do  it?  Why  venture  on 
this  experiment?  Who  has  required  it  at  your  hands? 
Stand  where  you  all  stood  in  October,  1852,  or 
where  the  people  thought  you  stood.  Stand  where 
you  stood  in  February,  1853,  and  where  the  people 
believed  you  stood,  when  they  went  to  the  polls,  and 
sent  you  here.  Stand  where  all  three  of  the  political 
parties  stood  on  the  day  when  the  people  sent  us  here. 
Do  not  exhibit  the  spectacle  of  making  this  funda 
mental  change,  with  no  call  from  the  people  to  have 
it  made;  with  no  notice  to  the  people  that  it  was  to 
be  attempted,  and  with  no  chance  for  the  people  to 
elect  men  with  reference  to  its  being  attempted. 
Stand  by  it  because  we  have  had  an  independent  and 


SPEECH  ON  THE  JUDICIARY  115 

honorable  judiciary  under  it.  Stand  by  it,  because 
no  experiment  has  ever  been  tried  under  the  other; 
for  no  generation  has  grown  up  under  an  elective 
judiciary.  And  I  say  to  the  gentleman  from  Natick 
(Mr.  Wilson),  and  to  the  gentleman  from  Fall  River 
(Mr.  Hooper),  by  all  means,  let  it  stand  until  they 
have  agreed  what  they  will  substitute  in  the  place  of 
it.  I  say,  make  no  reform  until  your  institutions  need 
reform,  arid  until  you  have  agreed  what  reform  you 
will  make.  Do  not  exhibit  to  the  world  a  spectacle, 
as  we  shall  in  Massachusetts,  of  a  convention  called 
to  make  changes  which  the  popular  voice  had  indi 
cated,  taking  in  hand  to  make  substantial  changes 
of  which  the  people  had  given  no  intimation;  making 
change  for  the  sake  of  change;  without  any  admitted 
evil  to  be  remedied,  and  upon  a  theory  about  which 
themselves  cannot  agree.  Sir,  the  gentleman  from 
Fall  River  will  see  the  force  of  the  illustration,  when 
I  tell  him  it  is  bad  enough  to  see  two  surgeons  sitting 
by  the  side  of  a  sick  man,  quarreling  between  them 
selves  what  they  will  do  with  him;  but  to  have  them 
seize  hold  of  a  man  in  health,  and  bind  him  hand  and 
foot,  to  try  experiments  upon  him,  and  not  to  be  able 
to  agree  what  they  shall  do  to  him !  that  is  cruelty  as 
well  as  folly.  And  yet,  Sir,  that  is  precisely  the  state 
of  things  here. 

A  VOICE.  That's  a  fact. 

Let  gentlemen  lay  this  to  heart.  They  are  not  in 
a  position  to  try  this  experiment  here.  Nobody  has 
discussed  this  project;  yet  without  discussion,  gen 
tlemen  would  force  it  upon  the  people.  Gentlemen 
are  uneasy.  We  are  coming  towards  the  close  of  the 
session,  and  gentlemen  say  that  we  must  not  delay 
an  hour.  But  I  say  to  the  friends  of  the  Convention, 


116  RICHARD  HENRY  DANA,  JR. 

if  they  wish  to  save  time,  do  not  save  it  by  rash  and 
rapid  work.  Save  it  by  letting  alone  what  you  have 
not  time  to  do  well.  If  the  people  want  the  change, 
it  can  be  afterwards  made  through  the  legislature. 
But  my  word  for  it,  Sir,  the  people  do  not  want  it.  I 
so  judge  by  the  symptoms.  If  there  be  no  symptoms 
of  a  desire,  I  judge  that  there  is  no  desire. 

Sir,  we  hold  our  seats  here  under  an  implied  obli 
gation  not  to  touch  the  judiciary;  not  merely,  as  the 
gentleman  from  Natick  says,  not  to  make  it  elective, 
but  not  to  change  the  tenure  at  all.  Therefore,  I  say 
again,  stand  by  the  Constitution  until  you  see  a  diff 
iculty  to  remedy,  and  seeing  the  difficulty,  stand  by 
the  Constitution  still,  until  you  can  agree  as  to  what 
that  remedy  should  be.  Stand  by  it  until  the  people 
have  called  for  the  change;  and  when  they  have  called 
for  it,  and  the  evil  is  apparent,  and  the  remedy  agreed 
upon,  I  promise  to  give  you  my  humble  aid,  but  not 
till  then. 


V 
USURY  LAWS 

FEBRUARY  14,  1867 

[During  Mr.  Dana's  first  year  in  the  Massachusetts  Legisla 
ture,  1867,  the  repeal  of  the  usury  laws  of  the  state  became  a 
matter  of  discussion. 

"That  this  law  should  be  stricken  from  the  statute  book  had 
always  been  tacitly  accepted  as  something  hardly  within  the 
range  of  reasonable  expectation.  It  had  been  handed  down  from 
the  earliest  settlement,  was  of  Biblical  origin,  and  was  ordinarily 
regarded  as  one  of  the  pillars  of  civilized  society;  for  without 
some  law  fixing  a  legal  rate  of  interest,  it  was  popularly  supposed 
the  borrower  would  be  completely  at  the  control  of  the  lender. 
When  this  question  came  up,  Mr.  Dana  contributed  to  the  de 
bate  one  of  the  most  admirable  presentations  of  the  argument 
against  usury  laws  which  has  ever  been  made.  Its  effect  at  the 
time  of  its  delivery  was  great,  the  repealing  measure  passing  the 
House  of  Representatives,  to  the  surprise  of  every  one  outside 
the  State  House,  by  a  majority  of  43  in  a  total  vote  of  197.  When 
published,  the  fame  of  this  speech  went  abroad,  and  it  made  a 
deep  impression  beyond  the  limits  of  Massachusetts.  It  has  since 
been  printed  repeatedly,  and  is  still  one  of  the  documents  in  use 
wherever  the  question  of  the  repeal  of  usury  laws  is  under  dis 
cussion." 

There  was  no  organization  assisting  Mr.  Dana  at  the  time. 
It  was  the  case  of  the  power  of  one  man's  single  speech.  Apart 
from  any  need  of  enlightenment  in  this  Commonwealth,  where 
there  is  practically  no  danger  of  reestablishing  usury  laws,  the 
speech  is  still  well  worth  reading.  It  holds  the  attention  with  as 
much  interest  as  if  the  repeal  were  the  question  of  the  hour. 
1  Biography  of  R.  H.  Dana,  «/>.,  vol.  ii,  p.  337. 


118  RICHARD  HENRY  DANA,  JR. 

There  is  a  fascination  about  it,  and  many  of  the  principles  es 
tablished  and  illustrated  are  fundamental  ones  in  political  econ 
omy  which  all  should  know. 

That  Mr.  Dana's  arguments  and  predictions  are  amply  con 
firmed  by  forty-three  years  of  experience  is  well  known  in  gen 
eral.  Of  late  years,  it  has  been  again  and  again  noted  that  in 
Boston,  where  there  is  no  usury  law,  rates  of  interest  during  a 
panic  were  below  those  of  New  York,  where  there  is  a  legal 
limit.  Nor  has  the  New  York  seven  per  cent  legal  limit  pre 
vented  the  exaction  and  payment  of  interest  at  the  rate  of  ten, 
twelve,  twenty-five  per  cent  a  year  and  even  more.] 

THIS  subject,  Mr.  Speaker,  is  one  of  first-class 
importance.  Usury  laws  had  their  origin  in  the  be 
ginnings  of  history.  They  have  been  dealt  with  by 
moralists,  theologians,  philosophers,  statesmen,  and 
economists, — by  church  councils,  synods,  parlia 
ments,  royal  edicts,  and  legislatures,  from  the  Law 
of  Moses  to  the  hour  of  the  present  debate.  They  had 
a  noble  origin  —  an  origin  in  kind  hearts  and  religious 
purposes.  They  had  a  common  origin  with  sump 
tuary  laws,  and  laws  regulating  the  prices  of  the 
necessaries  of  life.  One  cannot  but  respect  the  mo 
tives  of  those  who,  in  ancient  times,  desired,  by  strong 
laws  and  heavy  penalties,  to  repress  luxuriousness  of 
living,  and  to  protect  the  poor  borrower  against  the 
rich  and  potent  lender,  and  the  poor  consumer  of 
the  necessaries  of  life  against  the  wealthy  producer. 

Sumptuary  laws  are  no  strangers  to  this  country. 
They  were  enforced  in  the  early  days  of  New  England; 
but  who  would  think  of  calling  for  them,  or  of  per 
mitting  them,  now? 

How  has  it  been  with  laws  regulating  the  prices 
of  the  necessaries  of  life? 

It  seemed  to  philanthropic  men  that  a  poor  con- 


USURY  LAWS  119 

sumer  should  not  be  obliged  to  pay  a  great  price  to 
the  rich  producer.  All  are  charged  to  give  to  the  poor; 
and  the  rich  producer  was  not  to  be  allowed  to  com 
pel  the  poor  consumer  to  pay  a  high  price  for  the 
necessaries  of  life  —  for  bread. 

If  we  go  back,  I  do  not  know  how  many  centuries, 
we  shall  find  philanthropic  men  urging  a  system  of 
laws  which  should  compel  the  producer  to  sell  at  mod 
erate  rates.  Nothing  could  be  more  humane  in  inten 
tion,  nothing  more  in  accordance  with  the  spirit  of 
Christianity.  But  when  they  came  to  put  the  system 
into  operation,  some  difficulties  showed  themselves. 
For  instance,  suppose  what  I  call  the  natural  price  of 
a  bushel  of  wheat,  that  is,  the  price  which,  without 
legislative  interference,  would  be  the  ruling  rate  when 
the  producer  and  consumer  were  brought  together, 
was  ten  shillings.  But  ten  shillings  is  a  high  price  for 
a  poor  consumer  to  pay.  The  philanthropic  legisla 
ture  says  he  shall  have  it  at  nine  shillings,  and  the 
rich  producer  shall  sell  it  at  nine  shillings.  In  those 
days  the  laws  were  enforced  —  and  no  law  should  stand 
that  cannot  be  enforced.  Gentlemen  can  see  that  if 
ten  shillings  was  the  proper  price,  and  the  producer 
was  compelled  to  sell  at  nine,  he  would  not  go  on  pro 
ducing  wheat,  but  would  turn  his  capital  and  indus 
try  in  another  direction.  So  the  consequence  would 
be  that  the  next  year  the  price  of  wheat  would  rise, 
and  the  poor  consumer  be  in  a  worse  condition. 

Something  must  be  done  to  increase  the  supply. 
The  first  attempt  was  to  compel  the  agriculturist  by 
penalties  to  produce  and  sell.  Immediately  it  became 
apparent  to  all  that  there  was  no  reason  why  he 
should  be  forced  to  raise  and  sell  at  a  losing  price, 
when  nobody  else  was  obliged  to  work  in  that  way. 


120  RICHARD  HENRY  DANA,  JR. 

Then  the  friends  of  the  poor  resorted  to  a  bounty. 
That  seemed  reasonable.  The  natural  value  is  ten 
shillings,  and  you  wish  to  sell  to  the  poor  at  nine; 
and  so  you  will  pay  the  producer  a  bounty  of  one 
shilling  per  bushel  from  the  public  treasury,  that  he 
may  sell  at  nine.  Why  is  not  that  proper?  Two  dif 
ficulties  immediately  occur.  The  first  is  that  you 
cannot  make  one  law  for  selling  to  the  rich,  and  an 
other  for  selling  to  the  poor.  You  cannot  say  to  the 
seller,  if  a  rich  man  comes  to  you  to  buy,  charge  him 
ten  shillings,  and  if  a  poor  man  comes,  sell  for  nine; 
for,  who  is  rich,  and  who  is  poor?  You  cannot  make 
a  law  to  benefit  the  poor  alone,  so  that  the  rich  will 
not  also  get  the  benefit  of  it  in  the  market,  as  well  as 
the  poor. 

Another  objection  to  the  bounty  was  that,  as  it 
must  be  raised  by  taxation,  every  man  was  taxed  for 
a  shilling  a  bushel,  that  every  man  might  buy  a  shil 
ling  a  bushel  cheaper.  Nay,  it  was  worse  than  that; 
for  it  is  known  that,  what  with  the  expenses  of  col 
lection  and  the  notorious  leakages  in  all  revenues, 
not  more  than  two  thirds  of  a  tax  collected  reaches 
its  point  of  destination.  So  that  one  shilling  and  six 
pence  was  levied  to  save  a  shilling. 

That  was  the  end  of  the  bounty  laws,  and  of  all 
attempts  to  regulate  the  price  of  the  necessaries  of 
life.  Yet  what  could  be  more  commendable  than  an 
attempt  to  reduce  the  price  of  the  necessaries  of  life? 
I  suppose  there  is  no  sane  man  anywhere  now,  who 
would  propose  to  regulate  that  price  by  legislation. 
You  would  say  it  is  absurd  to  do  so.  Mr.  Speaker, 
excuse  me,  you  cannot  say  it  is  absurd.  It  was  the 
faith  and  belief  of  centuries;  it  was  the  practice  of 
generations;  and  wise  men,  men  as  wise  in  their  day 


USURY  LAWS  121 

as  we  in  ours,  only  they  had  not  the  same  experience 
as  we,  —  yet  as  wise,  and  certainly  as  benevolent,  — 
advocated  this  system.  The  arguments  in  support 
of  the  system  were  as  urgent  and  as  sincere  as  those 
which  have  been  used  on  this  floor  against  the  repeal 
of  the  usury  laws.  It  was  experience,  and  the  prin 
ciples  deduced  from  experience  alone,  which  taught 
men  that  they  could  not  legislate  a  cheap  market. 
For  there  is  nothing  harder  to  get  out  of  a  man's 
mind,  when  he  is  conscious  that  he  has  undertaken 
a  course  of  conduct  from  pure  and  philanthropic  mo 
tives,  than  his  first  convictions.  It  is  easier  for  a 
camel  to  go  through  the  eye  of  a  needle,  than  for  a 
good  man  to  surrender,  to  the  teachings  of  experi 
ence,  a  darling  system  for  which  he  knows  he  has 
made  sacrifices,  and  with  which  he  has  identified  all 
he  has  and  is. 

The  next  system,  in  the  same  category,  from  which 
we  may  draw  instruction,  is  the  colonial  system.  It 
was  this:  The  mother  countries  —  Great  Britain, 
France,  and  Spain  —  established  laws  requiring  their 
respective  colonies  to  deal  solely  with  them.  The 
consequence  was  that  we  could  not  send  to  Cuba  and 
get  a  pound  of  sugar,  but  that  pound  of  sugar  must 
go  to  England  and  pay  duties  and  pass  through  the 
merchant's  hands  there,  and  then  come  here  and  pass 
through  the  merchant's  hands,  so  that  we  had  to  pay 
a  great  sum  for  a  pound  of  sugar.  Massachusetts 
could  not  sell  or  buy  except  with  the  mother  country. 
As  an  equivalent,  it  was  agreed  that  the  mother 
country  would  not  buy  the  products  of  the  colony 
except  from  the  colonies  themselves.  It  was  thought 
that  all  this  circuity  of  trade  and  reduplication  of 
business  was  a  creation  of  wealth.  By  and  by  it  came 


RICHARD  HENRY  DANA,  JR. 

to  be  discovered  that  both  countries  were  paying  a 
heavy  taxation,  and  both  obliged  to  buy  in  a  dear 
market  and  sell  in  a  cheap,  that  each  might  save  a 
little  out  of  a  forced  interchange.  This  system  may 
seem  now  absurd;  but  you  know  we  had  to  fight  our 
War  of  the  Revolution  partly  because  England  had 
a  false  notion  of  political  economy  as  to  her  colonies. 
Spain  has  not  given  up  her  system  yet.  Our  longer 
experience  has  shown  the  mistake  of  the  colonial 
system,  but  generations,  wise  and  prudent  in  other 
things,  adhered  to  it  and  fought  for  it. 

Consider  the  system  of  protection,  —  protection 
of  American  manufactures.  I  can  remember  when 
men  advocated  protection  for  the  sake  of  protection. 
Public  policy  may  still  lead  us  to  levy  duties  on  im 
ported  articles,  in  order  to  shelter  an  infant  manu 
facture  until  it  can  take  root  in  the  soil.  But  political 
economy  compels  us  to  be  reasonably  sure  that  the 
article  is  one  which  can  be  profitably  made  or  pro 
duced  here,  after  protection  is  withdrawn.  When  we 
have  a  given  amount  to  raise  for  the  government, 
and  duties  on  imports  are  the  best  mode  of  raising  it, 
we  charge  and  distribute  the  duties  so  as  best  to  coun 
teract  foreign  protective  systems  and  aid  our  own  in 
dustry;  but  this  is  secondary  and  incidental  protec 
tion.  How  many  statesmen  are  there  now  that  would 
raise  a  surplus  revenue  for  the  sake  of  protection? 
It  is  now  common  knowledge  that  this  revenue,  as 
we  fondly  call  it,  is  only  a  tax  upon  ourselves,  one 
third  of  which  is  spent  in  the  collection. 

I  will  now  ask  the  attention  of  the  House  to  the 
question  more  immediately  before  us;  and  I  hope 
this  introduction  has  not  been  without  its  bearing. 
I  trust  we  shall  have  gained  something  by  advanc- 


USURY  LAWS  123 

ing  in  this  manner  to  the  examination  of  our  sub 
ject. 

Mr.  Speaker,  I  will  never  vote  for  a  bill,  in  what 
ever  form  it  comes,  the  object  of  which  is,  or  the  tend 
ency  of  which  is,  to  raise  the  rate  of  interest  on 
money,  by  law.  I  will  never  vote  for  a  bill  the  effect 
of  which  is  to  enable  the  interest  on  money  to  rise,  if 
it  can  be  by  law  kept  down  for  the  benefit  of  the  poor 
borrower.  I  admit  it  has  been  true  in  times  past  — 
I  trust  it  is  no  longer  true  —  that  the  borrowing  were 
the  feebler  class,  and  the  lending  the  powerful  class. 
If  in  those  times  you  would  have  favored  either,  it 
should  be  the  borrower.  Perhaps  in  ancient  days 
such  laws  may  have  been  of  some  practical  use,  as  a 
protection  to  the  poor. 

I  said  the  usury  laws  had  a  noble  origin,  in  religious 
convictions  and  in  philanthropic  motives.  Therefore 
I  desire  to  speak  of  them  with  a  degree  of  respect. 
The  Mosaic  law  has  always  been  supposed  to  prohibit 
the  receiving  of  interest  for  money.  All  interest  was 
usury.  The  Mosaic  law  did  not  prohibit  the  taking 
of  usury  from  strangers,  and  therefore  it  was  not  con 
sidered  a  malum  in  se,  but  was  simply  a  regulation 
between  the  Jews  themselves.  Gentlemen  will  see 
the  difference  between  the  state  of  things  then  and 
now.  The  Jews  were  a  peculiar  people,  isolated,  ex 
clusive,  without  commerce,  without  trade,  without 
manufactures,  —  nothing  but  the  distaff  and  shuttle 
under  the  tent,  or  two  women  grinding  at  a  mill.  They 
had  no  mode  of  investing  capital.  Capital  consisted 
in  gold,  jewels,  and  raiment,  which  was  laid  up  in 
chests,  and  which  they  used  as  they  needed.  For  a 
man  to  lend  money  to  his  neighbor  was  very  much 
like  a  man's  now  lending  a  book  to  his  neighbor. 


124  RICHARD  HENRY  DANA,  JR. 

Any  of  us  would  be  ashamed  to  charge  for  lending  a 
book  to  his  neighbor.  I  have  been  in  countries  where 
the  capital  of  the  rich  was  laid  up  in  iron  chests,  and 
they  could  not  invest  it.  That  was  the  state  of  things 
among  the  Jews,  who  were  brethren,  one  man's  sons. 
For  those  reasons  they  would  not  take  money  for  their 
little  loans,  —  mere  accommodations  between  one 
another. 

When  Christianity  became  the  religion  of  Europe, 
this  Jewish  system  was  introduced  and  insisted  upon 
by  the  church,  in  the  Judaizing  tendencies  of  those 
days.  I  think  it  no  disrespect  to  say  that  the  ancient 
church  went  too  far  in  attempting  to  fasten  the  Mo 
saic  policy  upon  the  governments  of  that  period.  But 
I  do  not  think  gentlemen  will  find  that  the  prohibi 
tion  of  interest  was  due  solely  to  the  Mosaic  system. 
It  is  to  be  ascribed  in  part  to  Christian  philanthropy. 
Borrowers  were  poor,  lenders  were  rich. 

Nor  was  it  the  system  of  Moses  alone.  What  greater 
name  than  that  of  Aristotle?  He  said  money  could 
not  produce  money,  as  it  was,  in  its  nature,  barren. 
The  earth  could  produce;  its  products  could  be  con 
sumed;  but  money  produced  nothing.  Therefore, 
said  the  great  Aristotle,  money  ought  never  to  bear 
rent.  Now  who  do  you  suppose  was  the  first  person 
that  exposed  this  fallacy?  Not  one  of  his  contempo 
raries,  nor  one  of  the  philosophers  of  the  middle  pe 
riod,  but  the  great  reformer,  John  Calvin,  in  one  of 
his  powerful  Latin  paragraphs,  exploded  the  fallacy 
of  Aristotle,  and  relieved  mankind  from  its  incum- 
brance.  But  how  long  do  you  think  it  had  borne 
sway  over  the  minds  of  men?  Nineteen  hundred 
years !  One  of  the  effects  of  the  Reformation  was  to 
lessen  the  influence  of  these  laws  and  maxims;  yet 


USURY  LAWS  125 

Christians  always  took  hold  of  them  with  great  ten 
derness. 

Gradually  there  came  up  a  great  deal  of  mercantile 
and  manufacturing  industry,  and  a  necessity  for  cap 
ital;  and  the  capitalists,  instead  of  locking  up  their 
money,  put  it  in  a  position  where  it  might  increase; 
in  other  words,  they  lent  it.  Gentlemen  will  see  that 
capital  is  most  called  for  where  there  is  the  most  in 
dustry.  A  live  country  calls  for  capital,  and  can  pay 
for  it;  a  dead  country  cannot.  After  the  discovery  of 
America,  capital  was  in  demand,  and  men  were  ready 
to  pay  interest  on  it.  Then  the  theologians  were 
obliged  to  review  their  teachings.  If  it  had  come  to 
this,  that  money  must  be  had,  and  men  would  pay 
interest  on  it,  ecclesiastical  ethics  must  be  revised. 
It  was  then  noticed  that  in  one  of  the  parables,  the 
man  who  got  ten  talents  for  his  ten  talents  was  praised 
—  "Well  done,  good  and  faithful  servant " ;  he  had  lent 
his  money  to  usurers,  and,  it  would  seem,  at  a  high 
interest.  But  philanthropy  still  held  on  to  the  sys 
tem,  to  this  extent:  your  capitalists  may  lend  money, 
but  they  shall  not  extort;  they  shall  not  receive  more 
than  its  fair  value.  This  is  a  moral  law.  To-day  and 
here,  the  rate  of  legal  interest  is  six  per  cent;  but  if, 
when  the  market  value  is  five,  a  person  takes  six,  he 
is  morally  as  guilty  of  extortion  as  if,  when  the  value 
is  six,  he  should  take  seven.  He  would  be  taking  ad 
vantage  of  another's  necessities,  and  receiving  more 
than  a  fair  value  for  money.  The  early  laws  had  in 
view  this  object,  to  prevent  the  powerful  lender  get 
ting  more  from  the  needy  borrower  than  —  what? 
Six  per  cent?  No;  there  is  nothing  in  nature  that 
points  to  six  per  cent,  —  from  getting  more  than  the 
fair  value  at  the  time.  I  coincide  with  that  entirely. 


126  RICHARD  HENRY  DANA,  JR. 

I  agree  that  if  you  could  pass  a  law  which  should  not 
fix,  but  ascertain  the  market  value  of  money  every 
day,  that  would  be  right.  In  early,  simple  times,  the 
value  could  be  ascertained,  nearly.  But  as  business 
increased,  the  means  for  ascertaining  the  rates  failed. 
It  was  found  at  last  that  fixed  legal  rates  could  not 
be  adjusted  to  the  real  value  of  money.  Can  it  be 
done  now?  Let  any  man  take  up  a  newspaper  and 
examine  it,  and  he  will  see  that  money  fluctuates  not 
only  week  by  week  and  day  by  day,  but  hour  by  hour. 
You  would  be  obliged  to  have  a  commissioner  on  every 
curbstone,  and  a  financial  clock  at  the  head  of  State 
Street,  to  record  the  changes  by  the  minute;  and  then 
punish  men  who  took  excess,  as  ascertained  by  the 
clock ! 

The  usury  laws  of  this  day  do  not  stand  on  the  prin 
ciple  of  prohibiting  extortion,  but  on  that  of  fixing  the 
market  rate  of  interest  by  legislation.  Having  fixed 
a  permanent  and  purely  arbitrary  rate,  you  treat 
lending  at  that  rate,  although  it  be  above  the  market 
value,  and  therefore  extortionate,  as  right;  and  treat 
lending  above  that  rate,  though  below  the  market 
value,  as  wrong. 

The  rate  of  interest  is  governed  by  laws  of  trade. 
It  depends  upon  the  demand  and  the  supply;  not  upon 
the  amount  of  capital  in  the  country,  but  the  supply 
for  loan.  It  is  sometimes  carelessly  said  that  it  de 
pends  upon  the  amount  of  capital  in  the  country. 
You  might  as  well  say  that  the  price  of  fish  in  Faneuil 
Hall  Market  to-day  depends  upon  the  quantity  of 
fish  in  Massachusetts  Bay.  The  rate  of  interest  de 
pends  upon  the  amount  in  the  market  for  loan,  and 
upon  the  character  of  the  demand  as  well  as  its 
amount,  because  we  must  look  at  the  security.  When 


USURY  LAWS  127 

we  speak  of  the  market  rate  of  interest,  we  assume 
that  the  security  is  perfect.  If  you  cannot  ascertain 
the  rate  of  interest  upon  perfect  security,  so  as  to 
affix  to  it  by  legislation  a  standing  rate  which  shall 
be  its  real  value,  still  less  can  you  do  so  as  to  all  the 
degrees  and  kinds  of  inferior  and  questionable  security. 
Nevertheless,  your  legislation  has  sought  to  keep  in 
terest  down  to  one  rate,  in  all  cases  alike. 

Why,  Mr.  Speaker,  place  on  this  table  before  us 
three  samples  of  flour;  one  superfine,  one  fair,  and 
one  inferior.  If,  after  the  old  style,  you  should  wish 
to  regulate  by  law  the  price  of  flour,  would  you  com 
pel  the  merchant  to  sell  all  at  one  rate?  Now,  place 
on  this  table  three  notes,  on  which  money  is  to  be 
lent.  One  has  perfectly  good  security,  one  inferior, 
and  the  third  no  security  at  all.  Would  you  compel 
the  capitalist  to  lend  on  all  at  one  rate?  Certainly 
not,  in  justice.  Yet  that  is  what  you  do  by  your  usury 
laws.  If  times  are  such  that  the  best  paper  must  give 
six  per  cent,  you  will  not  permit  the  hirer  to  give  or 
the  lender  to  take  more  than  that  on  the  inferior.  This 
is  one  of  the  absurdities  of  your  usury  laws.  They 
not  only  take  no  account  of  the  market  of  the  world, 
which  moves  with  the  irresistible  power  of  ocean  tides, 
affecting  proportionally  all  securities,  good  and  bad; 
but  they  take  no  account  of  the  quality  of  the  secu 
rities  offered  for  sale.  If  in  time  of  panic  a  note  with 
perfect  security  must  pay  six  per  cent  a  month,  the 
lender  is  permitted  to  take  but  one-half  per  cent  a 
month  for  the  poorest.  He  must  take  the  same  in 
terest  on  an  inferior  note  for  twelve  months  as  on 
a  perfect  note  for  twelve  days.  If  a  poor  man,  in 
dire  need,  with  poor  security,  but  his  best,  wishes 
to  borrow,  and  a  better  note  than  his  is  worth  six 


128  RICHARD  HENRY  DANA,  JR. 

per  cent,  he  is  not  permitted  to  offer  anything  above 
that. 

It  is  time  now,  Mr.  Speaker,  that  the  House  took 
up  the  question  of  practicability.  Can  you  keep  down 
the  rate  of  interest  by  legislation,  if  you  would?  That 
question  must  be  answered  by  gentlemen  before  they 
have  a  right  to  respond  aye  or  no  on  this  matter. 

There  is  a  good  deal  of  instruction  to  be  derived 
from  the  steady  set  of  events.  There  has  been  a  uni 
form  tendency  toward  the  abolition  of  the  usury  laws 
for  the  last  eight  hundred  years,  among  liberal  minds, 
and  advocated  upon  the  most  enlightened  reasons. 
Gentlemen  who  have  defended  the  usury  laws  on  this 
floor,  as  special  friends  of  the  poor,  should  be  re 
minded  that  it  has  been  the  friends  of  the  poor,  the 
philanthropists,  the  statesmen  of  liberal  ideas,  who 
have  advocated  and  carried  the  reduction  or  repeal 
of  the  usury  laws. 

In  England,  during  the  Regency,  in  1818,  a  report 
was  made  by  a  committee  of  Parliament,  who  exam 
ined  the  borrowers  and  the  lenders,  and  came  to  the 
unanimous  conclusion  that  the  usury  laws  ought  to 
be  entirely  repealed.  That  report  went  to  the  House 
of  Commons,  but  Parliament  was  not  ready  for  it. 
Adam  Smith  found  no  excuse  for  usury  laws  except 
on  two  points,  to  protect  spendthrifts  and  repress 
projectors.  Toward  the  close  of  his  life,  he  read  the 
argument  of  Jeremy  Bentham,  and  acknowledged 
himself  mistaken  on  those  two  points.  So  the  Scotch 
financier,  McCulloch,  and  Stuart  Mill,  and  other 
writers  of  eminence,  advocated  the  repeal  of  the  usury 
laws.  But  they  could  not,  at  first,  carry  it  through 
the  House  of  Commons.  It  was  opposed  by  a  large 
class  of  persons,  but  not  the  same  class  who  have 


USURY  LAWS  129 

opposed  it  here.  It  lay  by  ten  years;  was  brought  up 
again,  and  defeated;  lay  by  ten  years  more,  and  in 
1839  they  went  to  this  extent  —  they  abolished  the 
usury  laws  on  commercial  paper  that  had  less  than 
twelve  months  to  run.  Then,  in  1850,  they  abolished 
the  usury  laws  on  everything  but  loans  on  real  es 
tate;  and  on  those,  interest  could  not  exceed  five  per 
cent.  The  great  landed  proprietors  of  England  op 
posed  the  repeal,  and  were  the  last  men  to  yield  their 
opposition,  because  they  thought  the  usury  laws  en 
abled  them  to  get  money  at  lower  rates  on  mortgage. 
Here,  with  us,  an  opposition  comes  from  a  class  of 
small  land-owners,  on  the  same  grounds.  They  think 
they  can  get  money  for  less,  on  their  farms,  if  the  law 
is  retained. 

The  law  remained  in  that  state  about  five  years, 
and  I  think  it  was  in  1855  that  England  abolished 
the  usury  laws  altogether,  by  a  bill  similar  in  its  fea 
tures  to  that  which  we  are  acting  upon  to-day,  but 
as  to  which  I  am  ashamed  to  say,  the  mother  coun 
try  is  twelve  years  in  advance  of  us.  Money  still  con 
tinues  to  be  loaned  in  England  at  much  lower  rates 
than  here.  It  is  an  open  market.  Have  the  poor  bor 
rowers  ever  complained?  We  read  with  deep  interest, 
as  we  ought,  all  that  concerns  the  middle  and  lower 
classes  of  England;  we  read  of  the  disabilities  under 
which  the  poor  suffer;  and  we  see  the  reports  of  the 
processions,  numbering  some  twenty  thousand,  who 
lower  their  banners  and  cheer  as  they  pass  the  United 
States  Embassy,  and  sing  John  Brown,  and  I  would 
ask  if  any  of  them  complain  because  the  usury  laws 
have  been  abolished?  Did  Richard  Cobden,  does 
John  Bright  or  Stuart  Mill,  demand  usury  laws? 
Was  it  an  article  in  the  creed  of  the  Chartists?  Look 


130  RICHARD  HENRY  DANA,  JR. 

over  the  banners  in  that  vast  procession  the  other 
day  in  London.  There  was  almost  everything  else 
there,  but  not  a  word  about  usury  laws.  The  common 
people  are  satisfied  that  they  are  better  off  without 
them. 

Look  at  Holland.  Holland  is  a  free  country,  a  coun 
try  dear  to  every  lover  of  liberty.  Holland  fought  for 
her  freedom  and  religion,  against  Spain,  in  those  no 
ble  wars,  for  principles  so  dear  to  every  lover  of  liberty 
the  world  over,  recorded  with  such  spirit  by  our  towns 
man,  and  —  I  regret  to  say  —  our  late  Minister  to 
the  Court  of  Austria,  a  Boston  boy.  Holland  has  no 
usury  laws.  But  there  are  more  poor,  industrious 
people  in  proportion  to  the  population  there,  than 
almost  anywhere  else.  What  is  the  rate  of  interest 
there?  It  varies  from  three  to  five  and  a  half  per  cent. 

You  have  a  right  to  respond  that  this  may  be  a 
very  good  thing  in  England  or  Holland,  but  how  will 
it  be  in  Massachusetts?  Let  us  look  at  the  principle. 
Gentlemen  need  take  into  their  minds  but  a  single 
argument.  If  it  were  my  own  argument,  I  hope  I 
should  not  be  so  vain  as  to  call  it  unanswerable;  but 
it  is  the  argument  of  all  the  great  writers  for  the  last 
quarter  of  a  century, —  an  argument  which  has  shown 
from  principle  that  the  usury  laws  must  be,  and  from 
statistics  that  they  are,  worse  than  nothing. 

With  your  leave,  I  will  put  the  argument  thus. 
Suppose  the  natural  rate  of  interest  to  be,  here  in 
Massachusetts,  seven  per  cent.  By  the  natural  rate, 
I  mean  the  rate  it  would  come  to,  in  the  absence  of 
legislative  interference,  if  the  borrower  and  lender 
came  directly  together  in  the  market.  Now  appear 
the  philanthropists,  and  say  that  seven  per  cent  is 
too  much  for  men  to  pay,  and  enact  laws  which  pro- 


USURY  LAWS  131 

hibit  the  giving  or  taking  more  than  six  per  cent. 
Suppose  there  are  fifty  millions  of  capital  in  the  mar 
ket  to  be  loaned,  when  the  usury  law  goes  into  opera 
tion.  What  will  be  the  effect  of  the  law?  I  think  we 
will  all  at  least  agree  on  this,  that  it  will  divide  the 
capitalists  into  three  classes:  those  who  will  lend  at 
six  per  cent,  those  who  will  not  lend  at  all,  unless  they 
get  their  money's  worth,  and  those  who  will  disobey 
the  statute  and  take  all  they  can  get.  I  admit  there 
will  be  a  few  of  the  first  class,  men  who  will  lend  at 
six  per  cent  money  that  is  worth  seven.  They  are  men 
scrupulous  about  formal  laws,  although  they  see  no 
moral  wrong  in  the  forbidden  act.  They  are  in  the 
habit  of  investing  in  loans,  and  do  not  like  to  change 
their  habits,  or  are  too  old,  or  inexperienced,  or  timid, 
to  put  their  capital  into  business.  But  this  class  is 
not  large,  and  is  diminishing  every  year.  The  second 
class  will  not  lend  at  less  than  the  full  value,  and  yet 
will  not  take  the  risks  or  disrepute  of  violating  a  law, 
nor  resort  to  the  circuities  and  chicanery  and  middle 
men  such  loans  entail.  They  invest  in  government 
securities  at  7-20  per  cent;  or,  if  they  are  active  and 
enterprising,  turn  their  capital  into  business,  add  their 
own  skill,  care,  and  industry  to  it,  and  make  twelve 
per  cent  and  more.  The  second  class  takes  from  the 
private  loan  market  a  large  part  of  the  supposed  fifty 
millions,  —  perhaps  a  third  or  a  half.  The  effect  of 
this  is  to  raise  the  rate;  for  the  supply  is  lessened,  and 
the  demand  is  not,  but  becomes  the  more  anxious 
and  eager. 

Now,  gentlemen  will  see  to  what  condition  such 
legislation  has  brought  the  borrower.  He  must  have 
his  money,  or  fail.  It  is  no  longer  the  natural  rate 
of  seven  per  cent  that  he  is  to  give,  on  perfect  secu- 


132  RICHARD  HENRY  DANA,  JR. 

rity,  but  nine  or  ten  per  cent,  and  he  is  brought  to  an 
inferior  class  of  money-lenders.  But  this  is  not  all. 
Another  element  is  forced  in.  There  is  insurance  to 
be  charged  for  the  risk  the  lender  takes  in  lending  on 
illegal  security;  for,  if  the  borrower  will  not  turn 
against  him  and  refuse  to  pay  the  interest,  the  bor 
rower's  assignee  in  bankruptcy,  or  his  executor,  may 
feel  it  his  duty  to  do  so.  Nor  is  that  all.  Something 
is  to  be  charged  for  the  disrepute  attending  the  trans 
action.  But  there  is  a  larger  addition  still.  These 
transactions  require  secrecy,  circuity,  transfers  of 
notes,  drafts,  and  fictitious  exchanges,  and  above  all, 
the  middlemen,  who  must  be  employed,  that  the  real 
parties  may  not  be  known.  How  much  do  these  mid 
dlemen  charge?  That  you  never  know.  No  man  on 
earth  is  so  well  placed  for  extortion  as  the  middleman, 
who  holds  the  secret  of  both  parties  in  his  hand.  As 
you  have  brought  your  borrower  down  to  dealing 
with  a  less  respectable,  less  responsible  class  of  men, 
he  must  bear  the  consequences.  And  what  rate  does 
the  distressed  borrower  at  last  pay  for  that  which  he 
could  have  got  openly,  like  a  man,  face  to  face  with 
the  lender,  at  seven  per  cent,  because  you  thought 
to  force  by  legislation  the  market  rate  below  its  nat 
ural  level? 

Mr.  Speaker,  I  have  been  assuming,  so  far,  that 
the  borrower  offers  satisfactory  security.  But  sup 
pose  he  does  not.  An  honest  but  poor  man,  with  a 
family,  is  a  little  behindhand,  and  must  pay  a  debt,  or 
have  his  property  taken  on  execution;  or  an  enterpris 
ing  young  man,  with  health  and  skill  and  character, 
but  no  capital,  wishes  to  borrow  a  sum  to  put  with  his 
industry  and  skill,  with  a  fair  hope  of  profit.  Neither 
of  these  men  can  give  perfect  security.  All  hangs  on 


USURY  LAWS  133 

their  lives  or  health.  Death,  or  a  long  fever,  lasting 
through  the  season,  will  leave  them  penniless ;  and  in 
all  probability,  if  they  are  young  men,  they  hold  their 
houses  under  purchase-money  mortgages,  and  can 
give  no  landed  security.  If  theoretically  perfect  se 
curity,  driven  to  middlemen  and  circuitous  trans 
actions,  ends  in  giving  ten  per  cent,  where  will  such 
borrowers  as  these  be,  in  such  hands?  The  strong  and 
enterprising  young  man  will  give  the  utmost  that  his 
expected  profits  will  allow  him  to  give,  without  actual 
loss,  for  he  must  work;  but  the  distressed  debtor  must 
sell,  or  let  his  creditor  sell,  all  he  has,  to  meet  the 
payment  of  his  debt. 

This  leads  me  to  call  the  attention  of  the  House 
to  another  anomaly  of  the  usury  laws.  You  put  the 
borrower  under  guardianship,  as  to  money,  and  limit 
him  to  six  per  cent,  whatever  the  market  rate,  what 
ever  his  need,  and  whatever  his  security.  But  you 
leave  him  his  own  master  as  to  everything  else.  He 
must  not  borrow  money  at  seven  per  cent,  but  he 
may  sell  the  very  ground  under  his  feet.  He  cannot 
be  trusted  in  the  money-market,  but  the  pawnbroker's 
is  open  to  him.  He  may  sell  all  he  has,  to  gratify  his 
passions  or  to  meet  his  necessities,  and  no  one  can 
interfere  to  save  his  wife  and  children,  unless  he  is 
so  far  gone  as  to  be  no  longer  sui  juris.  Take  the  case 
of  the  poor,  honest  debtor.  Sickness  or  misfortune 
has  left  him  in  debt,  and  a  hard  creditor,  or  an  insti 
tution  or  trustee  that  acts  by  rule,  is  pressing  him 
to  an  execution.  If  he  could  borrow  a  thousand  dol 
lars,  on  a  year's  or  three  years'  loan,  he  could  pay  the 
debt,  and  have  a  little  with  which  to  begin  again. 
But  with  his  poor  security,  and  the  high  state  of  the 
market,  he  cannot  get  the  money  at  six  per  cent. 


134  RICHARD  HENRY  DANA,  JR. 

You  prohibit  him  from  giving  seven,  even  if  he  must 
sell  the  land  under  his  feet,  the  house  over  the  head 
of  his  wife  and  children,  and  all  their  useful  or  en 
deared  furniture,  which  they  may  never  get  back,  and 
sell  it  all  at  a  ruinous  loss,  as  is  always  the  case  in 
forced  sales, —  a  loss  of  at  least  twenty -five  per  cent. 
And  this  to  save  him  from  paying  more  than  six  per 
cent!  In  forced  sales, or  sales  on  execution,  it  is  known 
that  articles  seldom  realize  over  two  thirds  their 
value,  and  then  there  are  the  taxable  costs,  and  all 
other  expenses  to  be  deducted.  The  debtor  might 
have  saved  all  this  by  a  loan  for  a  year,  more  or  less, 
at  the  market  value  of  his  security.  What  shall  we 
say  of  such  legislation?  Is  it  not  preposterous?  Is  it 
not  discreditable?  Is  it  not  a  shame  upon  our  intelli 
gence  and  public  spirit  and  humanity? 

But  I  have  not  yet  presented  to  you  the  worst  fea 
tures  of  your  law.  I  have  taken  ordinary  times,  when 
the  natural  rate  is  six  or  seven  per  cent  on  theoreti 
cally  perfect  security.  But  what  shall  we  say  of  those 
times  of  distress  and  panic, —  of  times  when  all  rules 
and  rates  fail, —  when  the  strong  men  bow  them 
selves?  The  gentleman  from  Walpole  (Mr.  Bird)  has 
told  us,  here  in  his  place  as  a  legislator, —  of  all  others 
bound  to  respect  the  laws, —  he  has  told  us  that  in 
the  crisis  of  1857  he  paid,  once,  five  per  cent  a  month. 
He  must  meet  his  notes  or  fail.  That  was  not  all.  He 
felt  bound  in  honor  to  pay  his  debts,  if  he  could  pos 
sibly  get  the  money,  that  others  might  not  fail  who 
depended  on  him.  He  had  a  friend  who  had  the  money; 
it  would  bring  more  in  the  market,  but  he  let  Mr. 
Bird  have  it  at  five  per  cent  per  month;  and  Mr.  Bird 
has  told  us  it  was  the  cheapest  money  he  ever  bor 
rowed,  that  he  never  paid  interest  so  cheerfully,  and 


USURY  LAWS  135 

that  he  felt  grateful  to  the  lender  as  a  true  friend  in 
need.  After  such  a  statement  as  this,  —  and  it  is  but 
a  sample  of  what  thousands  can  tell  us  in  every  time 
of  distress,  —  what  is  your  six  per  cent  law  good  for, 
as  a  financial  restriction?  Its  moral  aspects  I  shall 
have  occasion  shortly  to  call  your  attention  to.  As 
soon  as  money  begins  to  rise  with  the  demand,  and 
failures  thicken,  capital,  proverbially  timid,  begins 
to  withdraw  itself,  and  as  the  crisis  comes  to  its  height, 
some  will  not  lend  at  all,  and  others  only  at  enormous 
interest;  for  it  is  in  fact  insurance  upon  ships  on  a  lee 
shore.  Then  the  Jews  emerge  from  their  alleys,  and 
the  curb-stone  brokers  swarm,  and  need  and  fear  and 
distrust  and  avarice  act  and  react,  until  the  end  is  a 
panic.  Are  your  usury  laws  of  any  value  then,  to 
furnish  money  at  six  per  cent?  They  are  forgotten 
or  laughed  to  scorn.  The  man  who  cannot  borrow  can 
sell,  and  merchants  will  sell  at  prices  as  ruinous  as  their 
loans  could  possibly  be.  The  usury  laws  are  lost  sight 
of  long  before  the  panic  is  reached.  Their  effect  is 
felt  only  in  the  first  stages,  when,  but  for  the  law, 
capital  would  be  let  at  its  proper  rate.  Then  the  law 
drives  away  all  who  will  not  lend  at  the  Quixotic  rate 
of  six  per  cent,  and  gives  over  all  doubtful  security  to 
despair.  In  such  times,  its  effect  is  to  hurry  the  first 
steps,  and  to  turn  a  simple  stringency  into  a  distress, 
and  a  distress  into  a  panic. 

Your  laws  make  no  allowance  for  changes  in  the 
state  of  the  market.  The  British  corn  laws  had  a  slid 
ing  scale.  So,  in  several  of  the  states,  there  is  a  scope 
allowed  under  the  usury  laws.  In  Indiana,  Illinois, 
and  Iowa,  the  rate  is  between  six  and  ten  per  cent; 
in  Mississippi  and  Florida,  between  six  and  eight  per 
cent;  in  Michigan  and  Wisconsin,  between  seven  and 


136  RICHARD  HENRY  DANA,  JR. 

ten  per  cent;  in  Minnesota,  between  seven  and  twelve 
per  cent;  in  Texas,  between  eight  and  twelve  per  cent; 
while  in  California  there  have  been  no  usury  laws 
since  1850,  with  ten  per  cent  in  the  absence  of  a  con 
tract.  But  we  adhere  to  an  iron  rule,  as  they  do  in 
New  York;  and  an  attempt  to  allow  a  margin  from 
six  to  eight  per  cent  found  no  favor  in  this  House. 
Members  talk  as  if  there  were  something  in  nature 
that  pointed  to  six  per  cent;  when,  in  fact,  the  rate 
is  rarely  at  six  per  cent.  Not  only  do  the  rates  al 
lowed  by  law  in  those  states  vary  from  six  per  cent 
to  twelve,  but  I  hold  in  my  hand  a  letter  from  one 
of  our  first  merchants,  whose  name  would  command 
the  respect  of  this  House,  as  well  for  his  philanthropy 
and  patriotism  as  for  his  financial  skill,  giving  the  de 
tails  of  the  rates  at  which  he  has  borrowed  and  lent 
money  for  the  last  five  years,  on  the  best  security, 
and  the  average  is  nearer  eight  per  cent  than  seven. 
I  have  here  also  a  schedule  from  the  cashier  of  a  bank 
in  State  Street,  giving  the  rates  charged  yesterday  for 
discounts  on  the  best  of  paper,  much  of  it  from  New 
York.  It  gives  the  names  of  parties,  the  amounts  and 
terms.  There  is  not  one  at  six  per  cent,  indeed  none 
below  seven,  and  varying  from  seven  to  seven  and 
three  fourths.  Gentlemen  will  see  from  this  how 
openly  their  laws  are  violated,  even  by  the  banks ;  for 
although  these  are  National  Banks,  they  are,  by  act 
of  Congress,  bound  by  the  several  state  laws,  as  to 
discounts. 

While  the  legal  rate  in  New  York  is  seven  per  cent, 
Massachusetts  capital  will  go  there;  not  the  small 
quantities,  I  admit,  for  they  will  not  pay  for  the  trou 
ble  and  risk;  but  capital  held  in  large  masses,  on  which 
a  small  advance  insures  a  large  profit.  Rhode  Island 


USURY  LAWS  137 

repealed  her  usury  laws  last  year;  and  now,  when 
money  rules  high  at  Providence,  Boston  capital  goes 
there. 

There  are  causes  for  these  different  rates,  in  differ 
ent  states,  as  in  the  same  states  at  different  times, — 
causes  that  are  constantly  in  operation,  and  too  sub 
tle  and  volatile  to  be  held  in  the  chains  of  a  perma 
nent  legislation. 

I  would  now  like  to  call  the  attention  of  the  House 
to  the  moral  aspect  of  this  question.  The  spectacle 
on  this  floor  the  other  day  was  a  lesson  not  to  be  for 
gotten.  We  all  knew  that  the  usury  laws  were  but 
little  regarded  at  any  time,  and  were  swept  out  of 
sight  in  times  of  panic.  But  when  a  legislator  rose  in 
his  place,  in  the  very  hall  of  legislation,  and  told  his 
brother  legislators,  with  an  open  brow  and  clear  con 
science,  that  he  had  paid  five  per  cent  a  month,  and 
thought  it  his  highest  duty  to  pay  it,  and  esteemed 
the  man  who  lent  him  money  at  that  rate  his  best 
friend  in  need,  did  any  of  you  think  the  less  well  of 
our  respected  friend?  Did  even  the  incongruity  of 
such  a  declaration  from  a  law-maker  suggest  itself  to 
your  minds?  But  let  me  put  you  another  supposition. 
Imagine,  if  you  can,  that  the  gentleman  from  Wai- 
pole  had  obeyed  the  laws  against  usury,  and  gone 
down  into  bankruptcy,  and  swept  others  along  with 
him,  who  had  trusted  to  his  solvency,  rather  than  pay 
anything  over  six  per  cent :  would  you  not  have  doubted 
either  his  sanity  or  his  good  faith?  But  let  me  put  the 
case  to  you  in  a  far  stronger  light.  Imagine,  if  you 
can,  that  having  taken  this  money  from  his  friend 
at  the  agreed  rate,  and  so  saved  himself  and  others 
from  bankruptcy,  he  had  done  what  the  law  of  Massa 
chusetts  tempts  him  to  do,  expects  him  to  do,  and, 


138  RICHARD  HENRY  DANA,  JR. 

if  law  is  law,  I  have  a  right  to  say,  commands  him  to 
do;  suppose  when  pay-day  came  round,  he  had  turned 
upon  his  friend,  refused  to  pay  him  any  interest,  and 
deducted  three  times  the  excess  from  the  money  he  had 
borrowed!  It  is  not  possible  even  to  suppose  such  a 
thing  of  him ;  but  suppose  it  of  some  imaginary  man, 
some  ideal  keeper  of  the  law.  He  could  not  show  his 
face  on  'Change!  He  could  not  have  been  elected 
to  this  House,  where  the  very  law  is  made  which  he 
had  strictly  followed ! 

It  is  usually  said  that  laws  should  not  stand  upon 
the  statute  book  which  have  not  the  moral  support 
of  the  community,  because  they  lower  the  dignity  of 
all  government,  and  demoralize  the  public  mind  by 
familiarity  with  disobedience.  But  what  shall  we  say 
of  laws  which  not  only  the  moral  sentiment  does  not 
support,  but  which  the  natural  sense  of  justice,  the 
instinct  of  honor,  actually  condemns?  In  olden  times 
the  taking  interest  above  the  legal  rate  was  a  crime, 
punished  by  imprisonment.  That  penalty  could  not 
be  enforced,  because  public  sentiment  condemned  it. 
We  receded  so  far  as  to  make  it  a  forfeiture  of  princi 
pal  and  interest.  That  failed,  for  the  same  reason. 
Men  thought  it  too  hard,  and  would  .not  enforce  it. 
We  next  receded  with  our  penalties,  until  we  came 
to  the  moderate  infliction  of  the  loss  of  all  interest 
on  the  loan  and  a  deduction  from  the  principal  of 
three  times  the  excess  over  the  legal  rate.  But  this 
moderate  penalty  you  cannot  enforce.  Yet  it  is  all 
you  have  left;  for  the  transaction  is  secret  and  cov 
ered  by  a  false  statement  of  the  principal  sum,  or  by 
other  means,  and  unless  the  borrower  turns  against 
the  lender  and  testifies,  you  can  do  nothing  with  the 
transaction;  and  the  borrower  had  better  pay  any 


USURY  LAWS  139 

amount  of  usury  than  incur  the  total  loss  of  credit 
ever  afterwards,  which  would  follow  his  turning  upon 
the  lender.  Under  usury  laws  the  loan  must  always 
bear  the  aspect  of  legality,  and  courts  and  juries  ren 
der  verdicts  and  judgments  on  extortionate  loans 
without  suspecting  it.  The  poor  borrower  must  suf 
fer  in  silence,  —  must  bleed  to  death  in  secret.  But, 
if  there  are  no  prohibitory  laws,  the  rate  actually  paid 
is  more  likely  to  be  known,  and  public  opinion  be 
brought  to  bear  upon  the  unreasonable  lender,  and 
sympathy,  if  not  relief,  extended  to  the  borrower. 

But  in  what  attitude  has  this  legislation  placed  our 
honored  Commonwealth?  Unable  to  make  usury  a 
crime,  she  tempts  the  borrower,  by  a  large  pecuniary 
reward,  to  commit  an  act  of  baseness  towards  the 
lender,  for  which  the  instincts  of  the  meanest  of  her 
citizens  will  despise  him.  In  the  darkest  regions  of  the 
criminal  law,  dealing  with  men  of  blood  and  fraud, 
we  tempt  one  to  the  betrayal  of  another,  and  employ 
spies,  and  false  colors;  for  such  men  are  in  a  state  of 
war  against  society.  We  are  dealing  with  moral  guilt, 
universally  recognized  as  such,  but  even  there,  we 
despise  the  thief  that  betrays  the  thief.  But  there  is 
no  element  of  right  or  wrong  about  six  per  cent  or 
seven  per  cent.  The  community  recognizes  no  ele 
ment  of  guilt  in  dealing  with  money  at  the  market 
rate,  if  there  be  no  fraud  or  extortion.  And  for  fraud, 
or  duress,  or  gross  extortion,  or  undue  advantage 
taken,  a  court  of  equity  will  afford  relief.  But  the 
moral  sentiment  of  the  "least  erected  spirits"  in 
the  community  is  above  the  temptation  which  your 
legislation  offers  them,  as  the  only  means  of  enforc 
ing  itself.  It  is  not  fit  that  the  jurisprudence  of  Mas 
sachusetts  should  bear  the  shame  longer. 


140  RICHARD  HENRY  DANA,  JR. 

Let  us  examine,  Mr.  Speaker,  the  reasons  —  I 
would  rather  say  the  excuses  —  for  maintaining  this 
system.  All  writers  on  political  economy  during  the 
last  fifty  years,  of  whom  I  have  information,  however 
much  they  differ  in  other  things,  have  agreed  in  con 
demning  the  usury  laws.  It  is  true  the  opponents  of 
our  bill  have  exhumed  a  single  pamphlet,  written  by 
the  late  Mr.  Whipple  of  Rhode  Island,  and  spread  it 
about  the  House,  not  without  some  effect.  But  do 
gentlemen  know  that,  though  republished  some  eight 
or  ten  years  ago,  for  a  special  purpose,  that  pamphlet 
was  written  more  than  thirty  years  ago,  as  an  article 
in  a  law  magazine,  by  a  gentleman  of  the  last  genera 
tion,  whose  ideas  were  drawn  from  the  generation 
before  that  —  before  the  time  of  Bentham,  McCul- 
loch,  Mill,  Wayland,  and  the  encyclopaedists  of  Great 
Britain  and  America?  Mr.  Whipple  advised  Rhode 
Island  to  increase  the  severity  of  her  usury  laws,  and 
to  fall  back  upon  the  Statute  of  Anne.  No  doubt  he 
thought  that  if  Rhode  Island  would  only  rest  her 
political  system  on  the  Charter  of  Charles  II,  and  her 
financial  system  on  the  Statute  of  Anne,  she  would 
indeed  be  the  model  commonwealth  of  America.  But 
Rhode  Island  has  followed  the  later  and  wiser  advice 
of  her  other  eminent  citizen,  President  Wayland,  and 
repealed  her  usury  laws  altogether,  as  have  Holland 
and  California.  Great  Britain,  I  had  the  honor  to 
remind  you,  repealed  hers  twelve  years  ago,  and  any 
man  who  would  there  ask  for  their  reenactment  would 
be  considered  as  insane  as  if  he  moved  for  the  resto 
ration  of  the  Heptarchy. 

But  the  facts  being  all  against  the  continuance  of 
the  usury  laws,  what  are  the  theoretic  excuses  for 
their  maintenance?  It  is  said  that  the  borrowing  class 


USURY  LAWS  141 

is  the  feebler  class ;  that  the  borrower  is  at  the  mercy 
of  the  lender  and  needs  protection.  I  hope  I  have 
shown  that,  if  this  were  true,  the  usury  laws  fail  to 
help  him,  at  the  only  time  he  needs  help,  when  the 
rates  of  interest  are  high,  or  his  security  is  poor, — 
in  fact  that  they  make  his  condition  the  worse.  But, 
Mr.  Speaker,  the  relations  between  the  borrower  and 
the  lender  are  not  now,  especially  in  New  England, 
what  they  were  once  in  history.  The  borrower  is 
no  longer  the  trembling  suppliant  at  the  threshold  of 
the  patrician  lender.  Who  are  the  borrowers  now? 
The  railroad,  manufacturing,  steamboat,  and  mining 
corporations.  They  are  borrowers, —  those  great  cor 
porations  that  are  suspected  of  controlling  the  poli 
tics  of  our  states  and  towns.  The  state  and  national 
governments  are  borrowers.  All  mercantile  enter 
prises  require  loans  of  credit;  and  the  great  merchants 
and  manufacturers  are  borrowers  one  day  and  lenders 
the  next.  The  great  builders  are  borrowers.  One  of 
the  members  from  Boston,  who  called  himself  a  me 
chanic,  spoke  warmly  for  the  right  of  the  poor  me 
chanic  to  get  his  loan  at  six  per  cent.  But  I  find,  on 
inquiry,  that  that  member  is  a  great  builder;  he  builds 
those  large  blocks  of  houses,  too  costly  for  you  or  me, 
sir,  to  live  in,  and  sells  them  for  prices  that  we  cannot 
afford  to  pay.  He  buys  land  and  builds  his  houses 
upon  borrowed  money,  and  sells  upon  credit  secured 
by  mortgage.  He  fears  no  usury  laws,  as  a  lender; 
for  his  extra  interest  is  put  into  the  purchase  money; 
and  no  doubt  he  would  be  glad  to  cheapen  the  rate  of 
borrowing,  where  it  is  an  actual  money  loan  in  the 
market,  for  there  he  is  a  borrower.  But,  even  so,  I 
hope  I  have  shown  that  his  calculations  are  mistaken. 
Again,  it  is  not  the  poor  mechanic  that  is  the  borrower. 


142  RICHARD  HENRY  DANA,  JR. 

The  journeymen  the  member  from  Boston  employs 
are  not  borrowers.  Hired  laborers  in  this  country  sel 
dom  are.  It  is  mostly  enterprise  that  borrows,  and 
capital  borrowing  more  capital. 

Who  are  the  lenders  in  this  country?  I  know  that 
great  capitalists  and  banks  of  discount  are  large 
lenders;  but  men  of  moderate  capital  are  also  lenders, 
sometimes  singly  and  sometimes  by  association.  But, 
sir,  by  a  miracle  of  this  century,  the  poorer  classes, 
the  day  laborers,  the  seamstresses  and  household  ser 
vants,  the  newsboys  in  the  streets,  have  become  cap 
italists,  and  lend  to  the  rich  and  great.  Formerly  the 
poorer  class  of  laborers,  laying  up  their  small  sums  of 
five  or  twenty  dollars,  too  small  to  lend  at  interest, 
hid  them  away  in  stockings,  or  buried  them  in  chim 
ney-corners,  and  were  tempted  to  spend  them  be 
cause  they  had  them  at  hand  and  were  gaining  no 
thing  from  them.  A  benign  Providence  put  it  into 
the  heart  and  head  of  some  persons,  early  in  this  cen 
tury,  to  establish  a  system  by  which  these  drops  that 
fell  upon  the  earth  only  to  sink  into  it,  were  saved  and 
gathered  up  into  little  rills,  which  flowed  together  and 
formed  a  steady  stream  of  public  credit.  These,  sir, 
are  our  savings  banks.  Some  gentleman  can  perhaps 
tell  me  the  exact  number  of  tens  of  millions  in  the 
savings  banks  of  Massachusetts  to-day.  [MR.  PLUMER 
of  Boston.  —  Seventy  millions.]  These  seventy  mil 
lions,  then,  sir,  constantly  in  the  loan-market,  are  al 
most  entirely  the  property  of  our  poorer  classes.  They 
form  this  new  element  that  enters  into  the  changed 
relations  of  the  borrowing  and  lending  classes  in  New 
England.  Your  usury  laws  extend  to  them;  and,  as 
the  trustees  of  those  banks  do  not  think  it  just  to  the 
poor  depositors  to  lend  their  money  at  six  per  cent, 


USURY  LAWS  143 

when  they  can  lawfully  get  more,  they  have  with 
drawn  a  large  share  of  this  seventy  millions  from  the 
loan-market,  and  invested  it  in  government  securi 
ties  at  over  seven  per  cent,  thus  diminishing  the  sup 
ply,  and  necessarily  increasing  the  rate  of  interest. 

It  must  be  remembered,  too,  that  the  borrower  in 
the  small  country  town  need  no  longer  be  subject  to 
the  one  rich  lender  of  the  town.  The  rapid  diffusion 
of  information  by  railroad,  telegraph,  post,  and  es 
pecially  the  daily  papers,  will  carry  the  rates  of  the 
money-market  almost  daily  into  the  remotest  towns 
of  New  England.  Money  will  find  its  level,  whether 
on  the  flat  of  State  Street,  or  on  the  bleak  hill  of  the 
remote  town  of  Peru,  whose  representative  addressed 
us  yesterday. 

The  only  practical  objection  to  the  repeal  seemed 
to  me  to  be  the  fear  that  the  banks  of  discount  might 
combine  and  keep  up  an  artificial  rate  of  interest.  I 
have  made  careful  inquiries  on  this  subject,  and  am 
satisfied  that  there  is  no  more  practical  danger  on  that 
head  than  the  community  must  always  incur  in  its 
financial  transactions.  The  banks  are  numerous. 
There  will  be  competition  among  them.  And  there 
is  not  only  the  competition  of  private  lenders  at  home, 
but  the  competition  from  abroad.  Capital  is  drawn 
toward  demand.  State  lines  and  town  lines  are  disre 
garded.  Loans  are  made  in  a  few  minutes  by  tele 
graph;  and  it  will  more  and  more  be  the  case  that, 
when  an  inadequacy  of  supply  to  the  demand,  or  a 
combination  of  lenders,  has  raised  the  rate  of  usance, 
an  influx  from  abroad  will  bring  it  to  its  natural  level. 

I  desire  to  express  my  thanks  to  the  House  for  the 
kind  attention  they  have  given  me.  My  wish  has  been 
to  satisfy  the  minds  of  the  doubtful,  and  if  possible  to 


144  RICHARD  HENRY  DANA,  JR. 

make  converts  of  opponents.  As  for  myself,  sir,  I  shall 
vote  for  the  repeal  of  the  usury  laws,  because  I  do  not 
think  they  aid  the  borrower,  but  rather  bring  him  to  a 
worse  condition  than  he  would  be  in,  in  an  open  mar 
ket.  They  have  balked  the  humane  purposes  that  gave 
them  life.  I  vote  for  their  repeal,  because  I  think 
them  in  violation  of  the  immutable  laws  of  trade,  and 
therefore  necessarily  leading  to  evil;  because  they  are 
of  no  effect  when  the  market-rate  is  equal  to  or  below 
the  legal  rate,  and,  when  it  is  above,  tend  to  fright 
en  away  capital,  induce  chicanery,  circumventions, 
frauds,  and  go-betweens,  and  to  introduce  the  borrower 
to  the  worst  class  of  lenders.  I  vote  for  their  repeal, 
because  they  familiarize  the  community  to  the  sight 
of  a  disobedience  of  law  by  the  best  of  citizens,  and 
consequently  to  a  severance  of  law  from  morals.  I  vote 
for  their  repeal,  because  the  steadily  advancing  public 
sentiment,  gradually  enlightened  by  generations  of 
experience,  no  longer  believes  them  politic  or  just, 
or  regards  the  breach  of  them  as  a  crime,  an  immoral 
ity,  or  even  an  impropriety.  And  lastly,  sir,  I  vote 
for  their  repeal,  because  they  place  our  beloved  Com 
monwealth  in  the  undignified  position  of  tempting 
the  borrower  to  commit  the  most  ignominious  of 
offenses,  in  the  vain  effort  to  prevent  that  which 
no  one  considers  to  be  a  crime. 


VI 
FREE  SOIL  MEETING,  1848 

AT  BOSTON 

REMARKS  ON  TAKING  THE  CHAIR  AT  THE  FREE  SOIL  MEETING, 
AT  THE  TREMONT  TEMPLE,  FRIDAY  EVENING,  JULY  7,  1848. 

I  THANK  you  for  the  honor  you  do  me  (and  it  is 
certainly  a  gratifying  one)  by  placing  me  in  this  po 
sition.  Before  I  accept  it,  and  enter  upon  its  duties, 
it  is  perhaps  but  fair  that  I  should  be  permitted  to 
define  it.  If  in  doing  this  I  appear  to  speak  much  of 
myself,  I  have  the  apology  of  believing  that  I  speak 
the  feelings  of  hundreds,  perhaps  of  thousands,  of  the 
young  men  of  the  Whig  party  of  Massachusetts.  Since 
the  nomination  of  General  Taylor  was  announced,  I 
have  spoken  with  them  constantly,  I  have  met  them 
at  the  corners  of  streets,  in  court  rooms,  in  public  con 
veyances,  and  I  believe  I  speak  their  feelings  when 
I  speak  my  own.  I  believe  you  will  hear  from  them 
before  many  days,  or  many  weeks,  are  gone  by. 

I  am  a  Whig  —  a  Whig  of  the  old  school;  I  may*, 
say,  without  affectation,  a  highly  conservative  Whig./ 
I  voted  for  Mr.  Winthrop  last  year,  and  under  the 
same  circumstances  I  should  vote  for  him  again.    A 
war  declared  by  the  law  of  the  land  is  a  war  for  you 
and  for  me.  I  have  voted  for  every  Whig  nomination 
since  1840,  when  I  cast  my  first  vote.   I  am  in  favor 
of  supporting  all  the  compromises  of  the  Constitution, 
in  good  faith,  as  well  as  in  profession. 


146  RICHARD  HENRY  DANA,  JR. 

Why,  then,  am  I  here?  I  understand  this  to  be 
mo  meeting  for  transcendental  purposes,  or  abolition 
(purposes,  or  politico-moral  reform.  It  is  a  meeting 
of  those  who  desire  to  see  if  they  cannot  do  better  than 
vote  for  either  Cass  or  Taylor;  to  see  if  the  twenty 
millions  of  America  cannot  furnish  a  better  candi 
date  than  either  of  them.  You  are  not  assembled  in 
any  hostility  to  the  South.  There  is  much  to  admire 
in  the  Southern  character;  there  are  some  points  in 
which  it  is  superior  to  our  own,  as  some  in  which  we 
think  it  otherwise.  We  are  ready  to  vote  for  General 
Taylor  if  he  owns  two  hundred  thousand  slaves  in 
stead  of  two  hundred,  if  he  is  with  us  against  the  ex 
tension  of  slave  territory.  The  "  subject  of  our  story  " 
is  simply  this.  Massachusetts  has  deliberately  taken 
A  position  in  favor  of  excluding  slavery  from  new 
territories,  leaving  each  State  now  in  the  Union  to 
manage  its  own  slavery.  Her  legislature  has  almost 
unanimously  passed  resolves  to  that  effect.  Her  Whig 
Conventions,  in  counties,  have,  almost  if  not  quite 
without  exception,  done  the  same.  The  Convention 
at  Springfield  last  autumn  unanimously  passed  the 
resolution  I  hold  in  my  hand :  — 

"Resolved :  — That  if  the  War  shall  be  prosecuted  to 
the  final  subjugation  and  dismemberment  of  Mexico, 
the  Whigs  of  Massachusetts  now  declare,  and  put  this 
declaration  of  their  purpose  on  record  —  that  Massa 
chusetts  will  never  consent  that  American  territory, 
however  acquired,  shall  become  a  part  of  the  Ameri 
can  Union,  unless  on  the  unalterable  condition  that 
*  there  shall  be  neither  Slavery  nor  involuntary  ser 
vitude  therein,  otherwise  than  in  the  punishment  of 


crime.' 


Now,  we  are  here  because  we  intend  to  adhere 


FREE  SOIL  MEETING,  1848  147 

to  this  resolution.  The  dignity  of  Massachusetts  re 
quires  her  to  adhere  to  it.  Not  only  must  we  adhere 
to  it  in  words,  but  in  action,  in  votes,  and  at  any 
political  hazard. 

When  General  Taylor  was  nominated,  I  feared,  in 
common  with  others,  that  voting  for  him  would  be  an 
act  of  indifference,  if  not  of  abandonment,  of  the  Massa 
chusetts  platform.  I  have  the  honor  of  personal  friend 
ship  —  they  will  allow  me  to  say  so  —  with  many  of 
the  leading  Whigs  of  this  city.  I  conversed  with  them, 
told  them  my  objections,  asked  them,  entreated  them 
for  some  indications,  some  evidence  that  General 
Taylor  was  with  us  as  to  Free  Soil.  Private  conver 
sations  are  to  be  kept  private,  but  I  may  say  they  were 
entirely  unsatisfactory.  The  farther  I  inquired  the 
worse  it  became.  Their  public  speeches  and  letters 
we  have  a  right  to  examine,  and  what  are  they?  Si 
lence —  dead  silence!  on  the  whole  subject.  Mr. 
Choate  has  spoken  in  Boston,  and  Mr.  Lawrence  in 
Burlington.  They  have  talked  upon  tariffs,  currency, 
war,  internal  improvements,  cotton, —  everything 
but  the  new  territories.  This  was  not  forgetfulness. 
It  weighed  heavily  on  their  minds.  If  they  were  fol 
lowing  the  Wilmot  Proviso  to  its  grave,  they  could 
not  have  preserved  a  more  respectful  silence.  Had 
they  been  under  vows  of  silence,  they  could  not  have 
kept  them  more  unexceptionably.  Now,  one  of  two 
things  is  true :  there  is  no  escape  from  it.  Either  these 
gentlemen  do  not  think  the  Free  Soil  question  of  conse 
quence  enough  to  speak  upon,  or  they  feel  themselves  to 
be  in  a  position  where  they  cannot  speak  upon  it.  With 
some  it  is  the  one,  and  with  some  the  other;  but  the 
one  or  the  other  with  all.  We  do  not  mean  to  stand  in 
such  a  position.  The  South  triumphs  at  the  nomination 


148  RICHARD  HENRY  DANA,  JR. 

of  General  Taylor,  and  proclaims  it  as  a  defeat  of  the 
Wilmot  Proviso;  and  the  North  is  silent.  The  South 
wants  nothing  better  than  silence  or  indifference  at 
the  North.   The  indications  are  not  to  be  mistaken. 
^Acquiescence  in  General  Taylor's  nomination  is  to 
Abandon  the  Free  Soil  question.  At  best,  it  is  to  give 
it  its  chance.  It  will  be  so  understood.  It  is  so  under 
stood  now.    The  men  at  the  South  who  risk  every 
thing  else,  to  defeat  the  exclusion  of  slavery  from  the 
territories,  go  for  General  Taylor,  and  have  so  from 
the  first,  heart  and  soul;  and  if  anybody  is  deceived, 
it  will  be  the  people  at  the  North  and  not  they.  They 
know  their  man.    They  feel  more  sure  of  him  than 
they  do  of  General  Cass.   Our  politicians  are  not  de 
ceived.   Their  silence  shows  they  are  not. 

It  is  said  that  Massachusetts  will  stand  alone.  Be 
it  so.  Let  us  have  a  lone  star  at  the  North,  as  well  as 
at  the  South.  She  has  taken  her  ground.  There  are 
her  resolutions,  which  I  have  read  to  you.  "Look  at 
her,  where  she  stands  —  there  she  will  stand  forever!" 
But  it  will  not  be  so.  The  indications  are  that  other 
states  will  act  with  us.  The  race  is  not  to  the  swift, 
nor  the  battle  to  the  strong.  This,  if  I  understand  it, 
is  an  appeal  to  the  reason,  the  instincts,  the  great 
heart  of  the  people.  We  do  not  rely  on  organizations, 
nor  on  this  man  or  that  man,  nor  on  the  bait  of  office- 
holding.  We  have  no  power  to  assign  parts  in  the 
drama  of  political  life.  It  is  an  appeal  from  the  poli 
ticians  and  organizations  that  have  failed  of  their 
duty,  to  the  right  reason  and  right  feeling  of  the  peo 
ple.  I  do  not  say  that  it  will  succeed.  It  is  a  matter 
of  duty.  If  it  does  not,  we  are  but  sufferers  in  a  com 
mon  calamity. 


VII 

BUFFALO  FREE  SOIL  CONVENTION,1  1848 
SPEECH  AT  FANEUIL  HALL,  AUGUST  22,  1848 

REPORTING  THE  DOINGS   OF   THE   BUFFALO  CONVENTION,  IN 
BEHALF  OF  THE  BOSTON  DELEGATION. 

MR.  PRESIDENT,  FELLOW  CITIZENS:  The  customs 
of  these  occasions  makes  it  proper  that  your  dele 
gates  should  report  to  you,  in  Faneuil  Hall  assembled, 
the  manner  in  which  they  have  discharged  the  duties 
of  their  trust.  We  rejoice  that  we  have  nothing  to  tell 
you  but  good  news,  tidings  of  enthusiasm  unparal 
leled,  and  of  absolute  unanimity. 

We  left  our  homes  a  few  days  before  the  time  ap 
pointed  for  the  session,  and  as  we  neared  the  point 
of  attraction,  we  found  ourselves  in  a  great  and  at 
every  step  increasing  current  of  intelligent,  earnest 
men,  American  citizens,  of  all  political  parties,  - 
who,  in  the  eloquent  language  of  Mr.  Van  Buren's 
letter,  "felt  themselves  called  upon  by  considera 
tions  of  the  highest  moment  to  suspend  rival  action, 
and  unite  their  common  energies  for  the  attainment 
of  a  common  end,  an  object  sacred  in  sight  of  Heaven, 
and  due  to  the  memories  of  the  great  and  just  men 
long  since  made  perfect  in  its  Courts."  At  Buffalo 
was  assembled  a  host  of  men  not  to  be  counted  by 
hundreds  but  by  thousands.  All  day  and  all  night, 

1  See  Life,  vol.  i,  pp,  131-144. 


150  RICHARD  HENRY  DANA,  JR. 

the  steam  engines  toiled  along  the  iron  tracks,  and 
the  steamboats  ploughed  the  waters  of  those  Medi 
terranean  seas,  with  their  pillars  of  cloud  by  day  and 
fire  by  night,  bringing  up  the  faithful  Israel  to  this 
great  solemnity.  -  -  There  were  Whigs,  who  had 
waited  in  vain  to  see  their  own  party  take  up,  in  good 
earnest,  the  cause  of  Free  Soil.  There  were  Demo 
crats,  who  had  borne  long  enough  the  hard  yoke  of 
party  discipline,  and  had  at  length  broken  the  band 
in  sunder  and  cast  its  cords  from  them.  There  were 
men  of  the  Liberty  party,  who  had  toiled  and  suffered 
fifteen  years  to  bring  about  this  result,  full  of  hope 
themselves,  and  bearing  with  them  the  memories  of  the 
martyrs  in  their  cause,  the  Holleys  and  Lovejoys  who 
had  died  before  the  sight.  But  magnificent  and  in 
spiriting  as  this  spectacle  was,  there  were  many  causes 
of  apprehension  and  misgiving.  We  found  that  no 
reference  had  been  had  to  the  suggestion  from  Colum 
bus,  as  to  the  choice  of  delegates,  but  that  they  were 
chosen  in  every  variety  of  manner  and  proportion. 
Massachusetts,  as  she  usually  does,  had  followed  the 
rule,  and  so  had  some  other  states,  but  many  states 
had  delegates  by  the  hundreds,  some  towns  alone  had 
sent  fifties,  and  the  Clay  Whigs  of  New  York  City 
had  ninety  delegates.  Could  this  vast  mass,  so  con 
stituted,  be  organized  into  a  deliberate,  representa 
tive  assembly!  And  without  that,  no  one  would  feel 
bound  by  its  action.  Nor  was  this  all.  The  Demo 
crats  of  New  York  had  already  nominated  their  can 
didate,  and  so  had  the  Liberty  party.  Would  these 
parties  and  their  candidates  come  into  the  Conven 
tion  on  equal  terms  with  the  Whigs,  and  with  each 
other,  and  abide  its  result?  Unless  this  was  done, 
the  Whigs  could  not,  with  dignity,  go  into  the  ballot. 


BUFFALO  CONVENTION,  1848  151 

Then,  too,  our  friends  of  the  Taylor  and  Cass  news 
papers  were  particularly  attentive  to  our  interests. 
At  first  they  sympathized  with  us  and  were  afraid 
we  should  be  disappointed,  so  few  persons  were  com 
ing  to  Buffalo.  And  then,  when  the  streets  of  Buffalo 
were  all  but  impassable,  they  said  that  such  a  vast 
mass  could  never  be  organized.  They  spoke  of  plots 
and  bargains,  and  warned  the  Whigs  against  the 
Democrats,  and  the  Democrats  against  the  Whigs, 
and  they  warned  us  both  against  the  Liberty  party, 
and  the  Liberty  party  against  both  of  us.  But  when 
we  came  to  look  one  another  in  the  face,  to  join  coun 
cils  together,  all  the  apprehensions  and  suspicions 
vanished  in  a  moment.  A  meeting  of  informal  com 
mittees  from  each  state  was  held,  and  a  plan  of  or 
ganization  recommended,  which  was  adopted  and 
carried  into  effect  without  difficulty.  There  was  to 
be  a  mass  convention,  consisting  of  all  persons  who 
had  come  up  to  Buffalo  for  Free  Soil.  This  was  to 
meet  under  the  tent,  in  the  park.  There  was  to  be  a 
select,  representative,  deliberate  assembly,  called  the 
"Committee  of  Conference,"  to  sit  with  closed  doors, 
and  decide  upon  the  main  questions,  and  refer  them 
to  the  mass  convention  for  ratification.  This  select 
convention  was  to  consist  of  delegates  from  each  state 
represented,  equal  in  number  to  three  times  its  elec 
toral  vote,  namely,  six  delegates  at  large,  and  three 
for  each  congressional  district;  the  intention  being  to 
allow  one  from  each  of  the  former  political  parties  for 
each  district.  It  was  an  interesting  and  instructive 
sight  to  see  the  masses  from  each  state  meet  at  their 
headquarters  and  select  their  representatives,  at 
large  and  from  each  district,  fairly  from  the  three 
former  parties,  and  commit  the  entire  power  to  this 


152  RICHARD  HENRY  DANA,  JR. 

select  representative  assembly,  without  a  doubt  or 
suspicion.  And  I  take  it  upon  myself  to  say  that  the 
Committee  of  Conferees,  or  Delegates'  Convention, 
as  it  was  more  generally  called,  was  divided  almost 
mathematically  into  three  equal  parts,  representing, 
in  each  state  and  district,  the  three  former  parties. — 
And  it  is  worthy  of  note,  that  Mr.  Van  Buren  went 
into  that  Convention  with  only  one  third  of  the  dele 
gation  from  his  own  state  professed  Democrats,  while 
one  third  were  Whigs,  and  the  other  third  Liberty 
party  men ;  and  when  the  roll  of  that  State  was  called 
every  third  man,  almost  invariably,  gave  the  name 
of  John  P.  Hale. 

On  Wednesday  morning  the  mass  convention  as 
sembled,  and  on  motion  of  Preston  King  of  New  York, 
Charles  Francis  Adams  of  Massachusetts  was  elected 
its  President.  And  when  Mr.  Adams  came  upon  the 
platform,  when  the  eye  of  that  vast  assembly  caught 
the  almost  preternatural  resemblance  he  bears  to  his 
father  and  grandfather  before  him,  when  they  saw 
the  simple  badge  of  mourning  about  his  hat,  bringing 
before  them  the  image  of  his  venerated  father,  and 
when  the  reverend  gentleman  who  opened  the  Con 
vention  with  prayer  asked  the  blessing  of  heaven 
upon  its  officers,  and  for  the  President,  that  the  man 
tle  of  the  father  might  fall  upon  the  son,  the  heart  of 
that  great  assembly  was  moved  as  one  man ;  and  from 
that  hour  a  strong  personal  interest  was  created  in 
Mr.  Adams,  which  increased  every  moment,  aided  by 
his  gentlemanlike  demeanor,  the  excellent  address  he 
made  to  the  assembly,  and  their  confidence  in  his  in 
domitable  resolution  and  energy,  the  characteristics 
of  his  race. 

Soon  afterwards,  the  Convention  of  Delegates  met, 


BUFFALO  CONVENTION,  1848  153 

in  a  small  church  without  galleries,  and  sat  with  closed 
doors,  not  even  admitting  a  newspaper  reporter;  for 
we  were  determined  not  to  be  overawed  by  cheerings 
up  and  hisses  down  from  the  galleries,  as  they  were 
at  Philadelphia  and  Baltimore,  and  to  have  no  lobby 
members,  and  side-aisle  members;  but  each  man  sat 
in  the  seat  allotted  to  him,  under  an  impending  sense 
of  personal  responsibility.  In  the  proceedings  of  our 
Convention,  there  was  one  thing  in  which  we  differed 
from  both  the  other  conventions.  We  would  not  per 
mit  the  subject  of  the  Presidency  to  be  stirred,  we 
wrould  not  suffer  a  man  to  speak  upon  the  Presidency, 
until  we  had  adopted  a  Platform  of  Principles.  Un 
like  the  Philadelphia  Convention,  which  adopted  its 
candidates  first  and  its  principles  —  never,  we  would 
do  nothing  until  our  principles  were  settled  and  de 
clared.  A  committee  of  three  from  each  state  was 
appointed  by  the  mass  convention,  to  report  a  Plat 
form  of  Principles,  and  the  record  of  our  Convention 
reads  that  we  immediately  adjourned  to  such  time  as 
this  committee  should  be  prepared  to  report.  This 
committee  was  composed  of  one  from  each  political 
party  from  each  state,  appointed  by  the  delegations 
from  the  several  states.  It  referred  the  subject  to  a 
sub-committee  of  seven,  fairly  composed,  who  care 
fully  considered  the  subject  for  the  greater  part  of 
the  day  and  night,  and  agreed  upon  a  platform,  unan 
imously.  For  its  authorship,  we  are  indebted,  it  was 
understood,  chiefly  to  Mr.  Chase  of  Ohio  and  Mr. 
Butler  of  New  York.  The  sub-committee  reported  it 
to  the  large  committee,  wrhich,  after  discussion  and 
some  amendments,  accepted  it  unanimously.  It  was 
then  reported  to  both  conventions,  and  adopted, 
without  debate,  by  acclamation.  Every  sentence, 


154  RICHARD  HENRY  DANA,  JR. 

every  paragraph,  was  cheered  into  its  legal  existence. 
We  did  not  adopt  it,  as  a  person  adopts  a  child.  We 
felt  that  it  was  the  common  mother  of  us  all!  We 
hailed  it,  and  rejoiced  that  we  had  it  to  stand  upon; 
and  from  that  moment  we  felt  that  the  path  was  clear 
and  bright  before  us. 

Having  avowed  our  principles,  we  proceeded  to 
the  nominations.  And  here  we  determined  to  know 
first  the  exact  position  of  each  candidate.  We  would 
leave  nothing  to  letters  in  gentlemen's  pockets,  but 
required  a  distinct  statement,  and  somebody  to  be 
responsible  for  it.  We  nominated  three  candidates, 
Mr.  Hale,  Judge  McLean,  and  Mr.  Van  Buren.  Mr. 
Chase  of  Ohio,  a  near  relative  of  Judge  McLean's, 
who  had  his  authority,  rose  and  stated  that  Judge 
McLean  positively  refused  to  be  a  candidate  for  either 
office.  His  reasons  for  this,  you  have  seen  in  his  let 
ter.  I  understand  them  to  be  these.  He  is  a  judge  on 
the  bench  of  the  Supreme  Court.  By  the  recent  action 
of  the  Senate,  he  felt  that  he  might  be  called  upon, 
in  his  judicial  capacity,  to  decide  some  of  the  prin 
ciples  laid  down  in  our  platform,  and  to  which  we 
should  require  his  assent;  and  he  was  not  willing,  his 
friends  would  not  permit  him,  to  resign  his  seat,  that 
Mr.  Polk  might  have  an  opportunity  to  put  a  North 
ern  dough-face  in  his  place.  These  and  other  reasons, 
satisfactory  to  himself  and  his  friends,  induced  him 
to  decline  the  nomination.  But,  said  Mr.  Chase, — 
his  feelings  are  with  us.  The  position  of  Mr.  Van 
Buren,  the  turning  point  of  the  Convention,  was  now 
to  be  declared,  and  for  that  purpose  we  called  upon 
Mr.  Butler. 

Mr.  Butler  responded  in  a  long  and  able  speech, 
the  material  part  of  which  was  substantially  this. 


BUFFALO  CONVENTION,  1848  155 

When  the  Free  Soil  Democrats  of  New  York,  com 
monly  called  Barnburners,  left  the  Baltimore  Con 
vention,  and  determined  to  call  a  convention  at  Utica, 
they  offered  the  nomination  for  the  Presidency  to  the 
principal  Democratic  statesmen  at  the  North.  But 
not  a  man  could  be  found  to  accept  it.  There  was  no 
expectation,  then,  that  a  national  Free  Soil  party  would 
be  formed.  The  candidate  would  have  everything  to 
endure  and  nothing  to  gain,  for  their  utmost  hope  was 
to  keep  alive  a  Free  Soil  party  in  New  York  as  the  nu 
cleus  of  a  party  which  at  some  future  day  might  be  car 
ried  forward  to  success.  All  other  candidates  having 
declined,  the  mass  of  the  Convention  determined  to 
force  the  nomination  upon  Mr.  Van  Buren.  This  re 
sult  his  son,  and  other  personal  friends,  endeavored 
to  avert,  but  the  Convention  carried  it  by  acclama 
tion.  They  said  they  knew  enough  of  Mr.  Van  Buren 
to  know,  that  if  they  could  satisfy  him  that,  unless 
he  accepted  the  nomination,  the  last  hope  of  a  Free 
Soil  Democratic  party  would  fail,  and  with  it  perhaps 
the  hope  of  Free  Soil  itself  in  New  York,  he  would 
not  decline.  Nor  were  they  deceived. y  He  accepted 
the  nomination.  And  here  let  me  say,  as  a  Whig,  as 
one  nurtured  in  a  dislike  and  suspicion  of  Mr.  Van 
Buren,  that  I  do  not  see  how  we  can  deny  him  the 
credit  of  disinterestedness  and  magnanimity  in  this 
act.  He  had  everything  to  suffer  and  nothing  to  gain. 
He  had  to  sacrifice  the  friendships  of  years,  the  asso 
ciates  of  a  long  life,  and  to  meet  the  most  formidable 
of  all  enemies,  former  political  friends.  He  had  to  go 
through  the  terrible  ordeal  of  a  Presidential  cam 
paign,  without  the  slightest  hope  of  success.  Having 
thus  forced  the  nomination  on  Mr.  Van  Buren,  his 
friends  were  not  a  little  embarrassed  about  the  Buf- 


156  RICHARD  HENRY  DANA,  JR. 

falo  Convention.  We  would  require  them  to  come 
into  it  on  equal  terms,  to  abide  its  result.  Could  they 
go  to  Mr.  Van  Buren  and  ask  him  to  let  them  aban 
don  a  nomination  which  they  had  forced  upon  him? 
But  their  embarrassment  was  relieved  by  a  letter 
which  Mr.  Van  Buren  wrote,  of  his  own  motion,  ad 
dressed  to  the  New  York  delegation  at  Buffalo.  In 
this  letter,  which  you  have  seen,  he  says  it  occurred 
to  him  that  he  might  relieve  them  from  embarrass 
ment,  and  aid  in  causing  the  harmonious  result  of  the 
Convention,  by  authorizing  them  to  abandon  the 
Utica  nomination.  He  did  so,  assuring  them  that  as 
they  knew  he  had  accepted  it  unwillingly,  so  he  should 
be  perfectly  content  to  have  another  nominated  in 
his  place.  His  friends  assumed  the  responsibility  of 
acting  upon  this  letter,  and  put  Mr.  Van  Buren  fairly 
upon  the  Convention,  on  equal  terms  with  the  other 
candidates,  to  abide  the  result  of  the  ballot. 

A  friend  of  Mr.  Hale  then  rose,  and  said  that  Mr. 
Van  Buren  authorized  them,  if  the  platform  of  prin 
ciples  was  satisfactory,  to  abandon  his  nomination 
and  put  him  fairly  upon  the  Convention,  to  serve  the 
cause  either  as  captain,  officer,  or  private. 

All  embarrassments  were  now  removed,  and  we 
had  a  fair  field  and  two  candidates  before  us,  on  equal 
terms,  but  both  Democrats  —  both  Democrats.  I 
confess  this  was  a  mortifying  moment  for  a  Whig, 
and  especially  for  a  Massachusetts  Whig.  Where, 
then,  was  the  great  sun  of  our  firmament?  Hidden 
behind  a  dark  and  impenetrable  cloud.  May  that  sun 
never  go  down  in  a  cloud!  The  monument  of  free 
dom  which  we  have  reared,  his  hand  has  not  builded; 
but,  in  his  own  immortal  words,  may  the  last  rays 
of  his  setting  sun  linger  and  play  about  its  summit! 


BUFFALO  CONVENTION,  1848  157 

Of  all  the  prominent  Whig  statesmen,  there  was  not 
one  willing  to  put  himself  upon  our  Convention,  and 
abide  the  issue  of  our  cause,  —  no,  not  one.  If  there 
is  a  Whig  in  Faneuil  Hall  who  doubts  about  the  nom 
ination  of  Mr.  Van  Buren,  let  him  name  to  me  a  sin 
gle  Whig  statesman  of  the  first  class,  fit  to  be  the  head 
of  our  party,  whom  we  could  have  put  in  nomination, 
or  let  him  forever  after  hold  his  peace. 

The  Whigs  were  a  fair  third  of  the  Convention,  and 
we  held  the  balance  of  power  between  Mr.  Hale  and 
Mr.  Van  Buren.  And  in  this  connection  let  me  say  a 
word  about  Mr.  Hale.  He  is  a  young  man,  younger, 
I  believe,  than  any  of  our  present  delegation  in  Con 
gress.  He  has  suddenly  risen  to  an  eminence,  unex 
pected  to  himself  and  his  friends,  on  account  of  the 
manly  stand  he  took  on  the  slavery  question  in  the 
politics  of  his  own  State.  He  has  not  had  an  enlarged 
experience  in  public  affairs.  And  I  know  it  to  be  a 
fact  that  Mr.  Hale  himself  was  satisfied,  from  the  first, 
that  it  was  far  better  for  him  to  abide  his  time,  than 
to  be  put  forward  prematurely  for  the  highest  office 
in  the  gift  of  any  people.  And  if  Mr.  Hale  does  abide 
his  time,  the  people  will,  in  due  season,  give  him  the 
proper  reward,  whatever  that  reward  may  be.  Mr. 
Van  Buren,  on  the  other  hand,  has  held  every  variety 
of  civil  office,  has  been  President  of  the  United  States, 
and  after  a  most  enlarged  experience,  has  had  the 
benefit  of  eight  years  of  private  life,  eight  years  of 
retrospection,  of  sober  second  thought.  And  although 
the  slavery  question  is  the  great  question,  yet  no  one 
can  tell  what  issues  the  state  of  foreign  affairs,  and  of 
our  relations  at  home,  may  present  to  the  country, 
during  the  next  Presidential  term.  We  thought,  there 
fore,  that,  all  things  considered,  Mr.  Van  Buren  was 


158  RICHARD  HENRY  DANA,  JR. 

the  stronger  and  fitter  candidate.  But  there  was  no 
plan  or  concert  about  voting.  When  the  roll  was 
called,  I  did  not  know  how  a  man  was  going  to  vote, 
nor  did  a  man  know  how  I  was  going  to  vote.  Each 
man  voted  on  his  individual  responsibility.  I  am  not 
obliged  to  say,  but  I  prefer  to  say,  that  I  gave  my  vote 
for  Mr.  Van  Buren.  All  but  four  of  the  Whig  dele 
gates  from  this  State  did  the  same,  and  those  four 
threw  away  their  votes,  on  the  informal  ballot. 

We  had  no  actual  ballot,  but  the  roll  was  called  and 
each  delegate  gave  the  name  of  the  candidate  he  pre 
ferred,  it  being  announced  that  this  was  not  bind 
ing  either  on  the  Convention,  or  on  the  delegate  vot 
ing.  Three  of  the  most  prominent  men  of  the  Liberty 
party  gave  the  name  of  Mr.  Van  Buren,  and  many 
of  the  others  who  named  Mr.  Hale  did  it  rather  for 
the  purpose  of  giving  Mr.  Hale  a  handsome  demon 
stration,  which  he  deserved,  than  because  they  actu 
ally  desired  to  have  him  nominated.  Forty-one  Whig 
votes  were  thrown  away,  but  these  would  have  been 
given,  no  doubt,  for  Mr.  Van  Buren,  on  an  actual 
ballot.  At  the  close  of  the  roll,  it  appeared  that  the 
majority  was  for  Mr.  Van  Buren.  Immediately  Mr. 
Joshua  Leavitt  of  this  State  rose  and  said  he  had  a 
word  to  say  in  behalf  of  the  Liberty  party.  He  was 
called  to  the  platform,  and  in  a  speech  of  about  twenty 
minutes,  which,  under  its  circumstances,  I  have  never 
heard  surpassed  for  effect,  sketched  the  history  of 
the  Liberty  party.  He  told  us  what  that  party  had 
done  and  suffered  to  bring  about  this  result.  He  told 
us  what  they  had  undergone  in  their  feelings  and 
reputations,  in  their  social  and  private  relations,  in 
public  attacks  and  persecutings  from  city  to  city  — 
how  they  had  been  between  the  parties  as  between 


BUFFALO  CONVENTION,  1848  159 

the  upper  and  nether  mill-stone;  but  now  the  time 
was  come  for  them  to  deliver  up  their  beloved  organ 
ization,  for  which  they  had  sacrificed  so  much,  to 
sacrifice  their  favorite  candidate  to  whom  they  were 
bound  by  strong  and  increasing  attachment.  There 
was  hardly  a  dry  eye  among  the  Liberty  party  men 
in  that  house.  He  ended  by  moving  the  unanimous 
nomination  of  Martin  Van  Buren.  This  was  seconded 
by  Mr.  Lewis  of  Ohio,  in  an  eloquent  and  touching 
speech,  and  was  carried  by  acclamation,  without  one 
dissenting  or  doubtful  voice. 

Having  settled  the  question  of  the  Presidency,  we 
proceeded  to  the  Vice-Presidency.  It  was  understood 
that  as  the  candidate  for  the  Presidency  was  a  Demo 
crat,  the  candidate  for  the  Vice-Presidency  should  be 
a  Whig.  This  shut  out  Mr.  Hale,  and  his  friends  made 
a  second  sacrifice  by  withdrawing  him  from  the  bal 
lot  for  that  office.  As  Mr.  Van  Buren  was  from  the 
East,  it  was  understood  that  the  nomination  for  the 
Vice-Presidency  should  lie  with  the  West,  and  we 
adjourned  for  an  hour  and  a  half  to  give  the  Western 
members  opportunity  to  confer,  with  the  understand 
ing  that  Ohio,  as  the  principal  Western  state,  should 
ascertain  and  declare  the  opinions  of  the  others.  Well, 
fellow  citizens,  the  members  from  Ohio  met,  and  they 
were  unanimous  for  Mr.  Adams.  They  said  he  was 
the  man,  his  was  the  name,  for  the  day  and  the  times. 
They  wished  to  vindicate  the  memory  of  his  father, 
who  had  contended  almost  single-handed  on  the  floor 
of  Congress  for  the  right  of  petition.  They  knew  in 
Mr.  Adams  the  author  of  those  legislative  resolutions 
which,  in  spite  of  the  reluctance  of  some,  and  the  in 
difference  of  many,  have  kept  Massachusetts  an 
chored  to  the  cause  of  Free  Soil.  They  said  they 


160  RICHARD  HENRY  DANA,  JR. 

wished  to  show  what  they  called  (I  do  not  use  the 
term)  the  cotton  Whigs  of  Massachusetts  that  they 
appreciated,  at  the  West,  the  labors  of  Mr.  Adams. 
The  other  states  consulted,  Indiana,  Illinois,  Michi 
gan,  Wisconsin,  and  Iowa,  and  they  were  determined 
upon  Mr.  Adams.  So  were  the  Pennsylvanians,  six 
and  sixty  good  men  and  true.  A  committee  from  the 
Ohio  delegation  united  upon  Mr.  Adams.  I  saw  him 
immediately  afterwards.  He  was  as  much  affected  as 
surprised  by  the  announcement.  He  told  them  it 
would  not  do;  that  the  understanding  was  it  should 
be  a  Western  candidate.  No,  sir,  answered  these 
whole-souled  men  of  the  West,  the  understanding  was 
that  it  should  be  a  Western  nomination !  Mr.  Adams 
told  them  he  would  have  nothing  to  say  about  it,  that 
he  would  refer  it  entirely  to  the  Massachusetts  dele 
gation,  and  asked  them  to  come  to  us  for  an  answer. 
At  his  request,  Mr.  Phillips  called  us  together  and 
stated  to  us  his  position.  He  desired  Mr.  Phillips  to 
say  to  us  that  if  for  any  reason  we  thought  it  more  ex 
pedient  that  the  nominee  should  be  a  Western  man, 
we  should  say  so  to  the  Ohio  gentlemen,  and  suggested 
to  us  that  although  these  gentlemen  might  have  an 
inclination  towards  him  at  Buffalo,  their  constituents 
at  home  might  feel  differently.  He  also  suggested  a 
loss  of  influence  to  himself  and  others  who  stood  like 
him,  at  home. 

We  considered  these  things,  but  we  found  that  the 
current  of  feeling  had  set  towards  Mr.  Adams  in  a 
manner  that  was  irresistible.  We  therefore  told  the 
Ohio  gentlemen  that  we  should  not  advocate  the 
claims  of  Mr.  Adams,  nor  act  for  him,  nor  do  any 
thing  about  it,  but  leave  the  matter  entirely  with 
them;  yet,  if  they  chose  to  come  to  Massachusetts 


BUFFALO  CONVENTION,  1848  161 

for  their  candidate,  and  to  take  Mr.  Adams,  we  were 
much  obliged  to  them. 

When  we  met,  after  the  adjournment,  a  venerable 
gentleman  from  Ohio,  with  gray  locks,  rose  and  said 
he  had  a  word  to  say  for  Ohio  and  the  West.  He  told 
us  that  they  were  agreed  to  nominate  Charles  Francis 
Adams  of  Massachusetts!  Never  in  my  life  have  I 
heard  such  an  acclamation  as  burst  from  that  as 
sembly  !  We  think  we  know  something  about  enthu 
siasm;  but  we  know  nothing  about  it,  here.  You 
should  see  those  Western  men  spring  upon  the  benches, 
on  the  tops  of  the  railings,  and  throw  their  hats  into 
the  air,  ay,  to  the  ceiling's  top!  For  our  work  was 
done!  We  had  adopted  our  platform  unanimously, 
and  nominated  our  candidates  unanimously.  Our 
nominations  were  made  known  to  the  mass  conven 
tion  in  the  tent,  and  there  they  were  received  with  no 
less  unanimity  and  enthusiasm.  We  heard  their  shout 
ings,  and  they  heard  our  shoutings,  and  for  a  time 
it  seemed  as  though  the  whole  city  of  Buffalo  was 
going  up  with  one  common  acclamation. 

This  great  Convention  adjourned.  But  I  should 
do  injustice  to  the  spirit  that  prevailed  there,  did  I 
not  tell  you  that  every  morning's  sun  at  Buffalo,  as 
it  rose,  saw  this  vast  assembly  met  for  offices  of  prayer 
and  praise.  And  when  we  adjourned  on  Thursday 
night,  it  was  to  meet  again  on  Friday  morning  to 
unite  in  a  common  thanksgiving  to  the  Disposer  of 
all  events,  who  had  enabled  us  to  come  to  this  wise 
and  harmonious  conclusion.  There  is  not  a  spot  that 
the  sun  shines  upon  where  these  events  could  have 
happened  but  in  the  free  states  of  North  America; 
where  so  many  thousand  men,  of  different  political 
parties,  could  have  met  in  one  place,  organized  a 


162  RICHARD  HENRY  DANA,  JR. 

representative,  deliberative  assembly,  remained  in 
session  three  days,  adopted  a  complete  set  of  po 
litical  principles,  and  their  candidates,  with  entire 
unanimity,  and  dispersed  without  a  single  unpleasant 
occurrence,  and  all  without  the  aid  of  the  slightest 
civil  force.  If  there  is  a  man  who  doubts  the  capa 
city  of  the  Anglo-Saxon  race  of  North  America  for 
self-government,  he  should  have  been  at  Buffalo  and 
learned  this  lesson. 

When  I  say  that  all  our  proceedings  were  unani 
mous,  I  must  allude  to  a  dissatisfaction  that  existed 
in  one  quarter,  —  I  mean  among  the  Taylor  and  Cass 
newspapers.  They  could  not  understand  it!  It  was 
past  all  comprehension !  All  their  hopes  and  our  ap 
prehensions  were  falsified,  and  this  incredible  work 
was  done  before  their  eyes.  As  soon  as  they  recovered 
from  their  surprise,  they  began  to  ask, —  What  charm, 
what  incantations,  and  what  mighty  magic,  —  what 
medicines  potent  o'er  the  blood,  had  brought  us  to 
this  state?  And  they  gathered  up  their  suspicions  and 
misgivings  and  put  them  in  shape,  entitling  the  com 
pound  "The  way  it  was  done."  Now, Mr.  President, 
and  gentlemen,  there  was  a  secret  about  this  business. 
It  is  this:  There  was  a  principle  at  the  bottom  of  it. 
Nothing  else  could  have  insured  this  result,  in  the 
nature  of  things  and  the  nature  of  men.  This  only  is 
the  magic  that  we  used!  This,  Messrs.  Editors,  was 
"the  way  it  was  done!"  This  it  is,  Mr.  Winthrop, 
that  maketh  men  to  be  of  one  mind  in  an  house! 

This  vast  assembly  of  intelligent,  earnest  men  has 
dispersed.  Where  are  they  now?  They  are  beside  our 
rock-bound  or  our  sandy  coast;  along  the  hills  and 
valleys,  and  in  the  cities  and  towns  of  New  England. 
They  are  at  the  South,  by  the  banks  of  the  Potomac 


BUFFALO  CONVENTION,  1848  163 

and  the  Shenandoah;  in  the  cities  and  villages  of  the 
great  West,  beyond  the  Falls  of  St.  Anthony  and  the 
Sault  Sainte  Marie.  They  are  beside  the  domestic 
hearths  and  domestic  altars  of  an  American  people. 
And  with  such  advocates,  such  missionaries,  such  evan 
gelists,  sooner  or  later,  we  cannot  but  succeed.  I  thank 
you  for  having  permitted  me,  by  your  votes,  to  take 
a  part  in  this  Convention.  It  is  something  that  a 
man  may  remember  for  life,  and  his  children  after  him. 
But  my  duty  for  this  evening  is  performed.  If  the 
Presidency  were  our  ultimate  object,  he  should  see 
the  expediency  of  a  choice  between  two  evils.  But  the 
Presidency  is  only  one  of  the  means  to  an  end.  The 
end  we  aim  at  is  the  ultimate  success  of  the  Free  Soil 
system.  To  insure  this,  we  must  have  an  organized 
demonstration  of  public  sentiment,  a  means  of  syste 
matic,  continuous,  certain,  popular  action.  Never  has 
there  been  a  time,  in  the  history  of  this  country,  when 
each  man's  vote  will  tell  so  much  as  now.  Those  who 
understand  that  president-making  is  the  ultimate  ob 
ject  of  parties,  think  we  are  mad  in  voting  for  a  third 
candidate;  but  those  who  see  that  the  end  is  the  ulti 
mate  success  of  a  system,  must  see  that  we  are  taking 
the  only  course  that  leads  to  it.  It  is  not  for  us  who 
are  putting  on  our  harness  to  boast  ourselves  as  those 
who  put  it  off.  We  have  a  duty  to  perform.  Success 
in  this  presidential  campaign  is  not  our  motive.  It 
is  only  one  of  our  objects,  one  of  the  means  to  our 
end.  When  and  in  what  we  shall  succeed,  we  cannot 
know  now;  but  of  this  we  feel  assured  —  our  cause 
is  just  — our  union  is  perfect. 


VIII 
THE  GREAT  GRAVITATION  MEETING 

[This  parody  on  the  Fugitive  Slave  Law  for  the  "preserva 
tion"  of  the  United  States  Constitution  ("gravitation")  with 
its  slavery  compromises,  was  written  by  Mr.  Dana  and  pub 
lished  November  21,  1851,  about  fourteen  months  after  the 
passage  of  the  law.1 

Mr.  Dana,  and  men  of  his  way  of  thinking,  did  not  object  to 
jk  fair  and  just  fugitive  slave  law  under  the  United  States  Con 
stitution  as  it  then  was.  This  is  clearly  shown  in  Mr.  Dana's 
Manchester,  New  Hampshire,  speech  of  February  11, 1861,  urging 
every  reasonable  conciliation  with  the  Southern  states  just  as 
some  had  seceded  and  others  were  in  doubt,  and  before  any 
act  of  war.  What  he  did  object  to  was  the  iniquitous  form  of 
/this  particular  Fugitive  Slave  Law,  which  antagonized  almost 
'  every  principle  of  legal  procedure  established  to  secure  justice. 

There  are  many  provisions  in  this  law  that  are  bad  enough;  such 
as  that  the  number  of  commissioners  to  enforce  this  law  should  be 
enlarged;  that  they  should  "hear  and  determine"  such  cases 
"in  a  summary  manner";  that  their  fee  should  be  ten  dollars  if 
they  decided  for  the  slavery  of  the  fugitive  and  only  five  dollars 
if  they  decided  in  favor  of  freedom;  that  they  had  a  right  to  sum 
mon  a  posse  comitatus  of  all  citizens  to  aid,  which  all  "good  citi 
zens"  are  commanded  to  obey;  that  any  marshal  who  shall  re 
fuse  to  act  shall  be  subject  to  a  fine  of  one  thousand  dollars  to  the 
use  of  the  claimant  of  the  supposed  slave;  that  "should  such 
fugitive  escape,  with  or  without  the  assent  of  such  marshal  or 
his  deputy,  such  marshal  shall  be  liable  on  his  official  bond  .  .  . 
for  the  benefit  of  such  claimant  for  the  full  value  of  the  service 
or  labor  of  said  fugitive";  that  any  attempt  at  rescue  should  be 

i  Fugitive  Slave  Law,  approved  by  President  Fillmore  September 
18,  1850. 


THE  GREAT  GRAVITATION  MEETING        165 

punished  by  a  fine  not  exceeding  one  thousand  dollars  and  im 
prisonment  not  exceeding  six  months;  that  after  the  fugitive  was 
decreed  to  the  claimant,  he  could  "use  such  reasonable  force  and 
restraint  as  may  be  necessary";  and  that  after  such  a  decree  the 
United  States  officers,  in  case  a  rescue  is  feared,  should  remove 
the  fugitive  at  the  expense  of  the  government  to  the  state  whence 
the  fugitive  had  fled. 

These  and  other  unusual  provisions  for  regaining  property 
would  have  been  comparatively  harmless  in  and  of  themselves, 
were  it  not  for  the  fact  that  the  whole  proceeding  was  based  on  a 
mere  affidavit  of  a  claimant  or  his  agent  or  attorney,  made  bef orfe; 
any  officer  authorized  to  administer  oaths  in  the  state  or  terr^- 
tory  from  which  the  fugitive  was  claimed  to  have  escaped.  This 
officer  was  not  obliged  to  go  back  of  the  affidavit  and  find  for 
himself  the  truth  of  the  statements.  In  a  small  country  town, 
he  might  be  aware  of  the  facts,  did  he  and  the  claimant  and  the 
fugitive  slave  all  live  there;  but  if  at  a  distance  from  the  home  of 
the  claimant  or  if  in  a  busy  city,  with  a  large  slave  mart,  the 
officer's  whole  knowledge  would  be  based  on  this  affidavit.  The 
fugitive  would,  of  course,  not  be  present,  or  have  any  one  to 
represent  him,  and  he  would  not  even  be  notified  of  the  pro 
ceedings. 

But  the  worst  is  yet  to  come.  The  officer  makes  up  a  record, 
based  on  this  ex  parte  affidavit,  and  by  Section  10,  this  record, 
in  every  state  of  the  Union,  is  made  "full  and  conclusive 
dence  of  the  fact  of  escape,  and  that  service  or  labor  of  the  per 
son  escaping  is  due  to  the  party  in  such  record  mentioned."  Not 
only  was  there  no  trial  by  jury,  but  there  was  no  trial  at  all. 
commissioner  was  bound  by  this  record,  even  if  he  should  have 
reasonable  doubts  as  to  the  truth  of  the  facts  contained  in  it; 
and  lastly,  "in  no  trial  or  hearing  under  this  act  shall  the  testi 
mony  of  such  alleged  fugitive  be  admitted  in  evidence."  Dear 
Reader,  please  note  the  word  "alleged."  It  does  not  mean  that 
after  the  fugitive  is  adjudged  to  the  claimant  he  cannot  testify. 
It  is  only  necessary  to  "allege"  that  a  man  is  a  fugitive,  and  in 
no  proceeding  can  he  testify  as  to  whether  he  is  or  ever  was  a 
slave,  or  a  fugitive,  or  as  to  his  identity.  As  Mr.  Rhodes  points 


166  RICHARD  HENRY  DANA,  JR. 

out  in  his  history,1  "The  mere  statement  of  the  provisions  of  this 
law  is  its  condemnation";  and  he  shows  how  far  more  just  was 
the  slave  law  of  ancient  Rome,  which  presumed  a  man  to  be  free 
until  he  was  proved  a  slave.  A  colored  man,  by  name  Adam 
Gibson,  was,  by  this  "  summary  process,"  actually  condemned 
to  slavery  and  delivered  to  a  slave  owner,  a  Mr.  William  Knight, 
under  mistake.  He  would  never  have  seen  liberty  again  had 
it  not  happened  that  Mr.  Knight  was  an  honorable  man,  who 
acknowledged  the  mistake  and  set  Gibson  free. 

To  feel  the  horrors  of  this  law,  let  us  suppose  a  beautiful 
woman  of  white  race,  but  of  dark  complexion,  who  is,  by  force  of 
circumstances,  let  us  say,  travelling  where  she  is  not  well  known, 
perhaps  in  the  southern  part  of  the  state  of  Ohio.  Some  rascal, 
calling  himself  a  claimant  or  the  agent  or  attorney  of  a  claim 
ant,  could  swear  out  an  affidavit  across  the  river  in  Kentucky 
before  any  officer  allowed  to  administer  oaths,  and  get  a 
record  describing  her.  Armed  with  this,  he  could  either  take  her 
himself,  or  employ  United  States  marshals,  who  dare  not  refuse 
under  heavy  penalties,  to  take  her  before  a  United  States  com 
missioner,  who,  in  his  turn,  would  be  precluded  by  the  record, 
and  she,  the  "alleged"  fugitive,  could  not  say  a  word  on  her  own 
behalf.  Her  captor,  when  she  was  decreed  to  him,  could  take 
her  by  "such  force  and  restraint  as  may  be  necessary,"  and  all 
would  be  done  in  "a  summary  manner." 

In  Mr.  Dana's  journal,2  he  tells  how  he  had  to  advise  a  free 
colored  man,  legally  free,  but  who  had  once  been  a  slave,  and 
who  had  heard  his  former  master  was  inquiring  as  to  his  where 
abouts,  that  though  a  free  man  he  had  no  chance,  that  there  was 
no  way  for  him,  if  his  old  master  had  a  record  obtained  some 
where  in  the  South,  to  prove  his  freedom,  nor  could  any  one 
else  prove  it  for  him.  No  wonder  that  Mr.  Dana,  who  rarely 
used  strong  language,  said,  "People  will  never  see  the  damnable 
character  of  the  tenth  section  of  that  act  until  a  few  atrocious 
cases  shall  have  arisen." 

This  gravitation  parody  was  an  attempt  to  make  people  see 

1  Rhodes's  History  of  the  United  States,  vol.  i,  p.  186. 

2  Biography  of  R.  H.  Dana,  Jr.,  vol.  i,  pp.  287-288. 


THE  GREAT  GRAVITATION  MEETING        167 

it.  There  had  been  an  answer  made  to  the  injustice  of  the  "sum 
mary"  proceedings  of  the  Fugitive  Slave  Law.  The  answer 
was  that  the  fugitive  slave,  when  carried  back  to  the  slave  state, 
might  there  have  a  trial  by  jury  as  to  his  status;  but  what  would 
that  trial  be  worth  where,  by  the  law  of  every  slave  state,  he  was 
unable  to  testify  in  court,  if  he  had  even  a  trace  of  negro  blood 
in  his  veins,  even  supposing  that  he  was  in  reality  free,  to  say 
nothing  of  his  disabilities  as  a  supposed  slave?] 

Great  Gravitation  Meeting 

AT 

FANEUIL  HALL!  ! 

WEBSTER!   CHOATE!  CASS!  AND  HAIXETT! 

GREAT  ENTHUSIASM! 

[Specially  Reported  for  the  Tribune.] 
[Not  by  Telegraph.} 

BOSTON,  Thursday,  Nov.  21. 

THE  long-expected  meeting  to  defend  and  preserve 
the  Law  of  Gravitation  came  off  last  evening,  and 
more  than  fulfilled  the  expectations  of  its  friends. 
The  hall  was  crowded  with  the  anxious  but  resolute 
friends  of  the  threatened  and  periled  law,  and  the 
utmost  unanimity  and  enthusiasm  prevailed. 

The  Hon.  Upland  Staple  was  called  to  the  Chair, 
and  twelve  vice-presidents  were  chosen,  among  whom, 
were  many  of  our  most  prominent  merchants  and 
lawyers.  The  names  of  Spinning  Jenny,  Esq.,  S. 
Island  Cotton,  Esq.,  Hon.  Rice  Fields,  Hon.  Increase 
Profit,  and  Retained  Power,  Esq.,  are  a  sufficient  in 
dication  of  the  character  and  standing  of  the  officers 
of  the  meeting. 

The  Hon.  U.  Staple,  on  taking  the  chair,  expressed 
his  gratification  at  being  selected  to  take  so  promi 
nent  a  part  in  a  meeting  in  this  consecrated  spot, 


168  RICHARD  HENRY  DANA,  JR. 

called  to  preserve  from  threatened  destruction  a  great 
and  vital  law  of  the  universe,  a  law  which  the  recent 
act  of  Congress  was  intended  to  preserve.  This  act, 
so  just  and  necessary,  he  said,  had  been  the  cause  of 
a  fanatical  violence,  dangerous  to  the  best  interests 
of  trade,  manufactures,  industry,  and  public  order  — 
an  opposition  which  it  was  the  intention  of  this  meet 
ing  to  put  down,  effectually  and  forever!  (Great  ap 
plause.)  For  this  purpose,  no  means  had  been  left 
untried.  The  names  of  those  merchants,  lawyers,  and 
physicians  who  had  signed  the  call  would  be  pub 
lished,  and  he  assured  the  meeting  that  the  names 
of  those  who  had  declined  to  sign  it  would  be  pub 
lished  also!  (Cheers  and  cries  of  " that's  right!  that's 
the  talk!")  Without  further  comment,  he  would  in 
troduce  to  the  meeting  the  Great  Expounder  of  the 
Law  of  Gravitation. 

Hon.  Daniel  Webster  then  came  forward,  and  was 
received  with  deafening  shouts  and  cheers.  As  soon 
as  silence  could  be  obtained,  he  spoke  as  follows :  — 

I  am  for  Gravitation!  (Applause.)  I  have  always 
been  for  Gravitation!  (Renewed  applause.)  I  always 
shall  be  for  Gravitation!  Under  the  law  of  Gravita 
tion  was  I  born,  under  the  law  of  Gravitation  have  I 
lived,  and  by  Divine  permission,  and  the  leave  of  cer 
tain  of  our  fanatical  friends,  I  expect  to  die  and  be 
buried  under  the  law  of  Gravitation!  (Tremendous 
sensation.) 

No  small  portion  of  my  life  has  been  devoted  — 
humbly  and  inconspicuously  I  admit  —  to  the  ex 
pounding  of  this  law.  (Here  the  speaker  was  inter 
rupted  by  nine  cheers  for  the  Great  Expounder.) 
Without  Gravitation,  what  would  be  our  condition? 
What  would  move  the  loom  or  the  plough?  Where 


THE  GEEAT  GRAVITATION  MEETING         169 

would  be  your  commerce,  your  railroads,  your  fac 
tories,  your  water-powers,  your  steam-powers  — 
those  great  and  invaluable  privileges  for  which  our 
ancestors  fought  and  died?  Not  only  would  these  be 
lost,  but  life  itself,  if  held  at  all,  would,  in  my  judg 
ment,  not  be  worth  the  holding.  (Sensation.) 

Now,  gentlemen,  I  hold  it  to  be  one  of  the  implied 
powers  of  Congress  to  pass  laws  for  the  preservation 
of  gravitation.  Fanatics  may  rave  and  strict  con- 
structionists  may  quibble,  but  no  man  whose  opin 
ion  is  worth  considering  doubts  the  existence  of  this 
right.  Then,  gentlemen,  if  the  end  is  allowable,  the 
means  to  the  end  are  allowable.  This,  I  think,  is  not 
new  or  doubtful  logic.  (Laughter.)  Congress  has 
just  passed  a  law  making  use  of  certain  of  these  means 
to  this  end.  This  is  the  whole  of  it!  And  yet  certain 
socialists  and  fanatics,  and  school-boys  and  school- 
girls  (laughter)  would  persuade  us  that  here  is  some 
thing  unconstitutional!  Have  we  five  senses,  Mr. 
President,  or  what  has  happened  to  us? 

Well,  fellow  citizens,  what  is  this  act,  —  this  lawful 
means  to  a  lawful  and  transcendently  important  end? 
It  is  just  this.  It  provides  that  whenever,  in  the  opin 
ion  of  any  person  living  south  of  the  equator,  the 
gravitation  or  equilibrium  of  the  earth  shall  be  in  dan- 
.  ger,  he  may  come  to  any  of  our  states  and  take  from 
them  any  person  or  persons,  who  or  whose  ancestors 
were  born  or  have  lived  in  the  Southern  hemisphere, 
and  carry  them  to  the  place  which  they  or  their  an 
cestors  left,  at  the  expense  of  our  government.  Can 
any  act  of  legislation  be  more  simple,  more  just,  or 
more  clearly  constitutional?  If  they  can,  my  short 
experience  and  limited  capacity  do  not  permit  me  to 
see  it.  I  congratulate  those  who  can.  (Laughter.) 


170  RICHARD  HENRY  DANA,  JR. 

I  grant  that  no  such  law  exists  in  the  eastern  hem 
isphere.  They  do  not  think  such  a  law  necessary. 
I  differ  from  the  eastern  hemisphere.  —  (Tremen 
dous  applause.)  I  think  such  a  law  necessary.  In 
minor  matters,  I  would  not  reenact  the  laws  of  God. 
I  would  trust  to  the  laws  of  climate,  scenery,  and 
physical  geography.  But  in  a  matter  of  such  infinite 
moment,  I  would  resort  to  human  aids,  and  endeavor 
to  cooperate  with  the  laws  of  the  moral  and  physical 
universe. 

In  classical  times,  Mr.  President,  there  was  a  set 
of  men  known  as  the  capsizores  mundarum.  Their 
object  was  to  overturn  the  universe  and  reconstruct 
it  according  to  their  own  theories.  This  class  is  not 
extinct  in  our  own  day.  The  opponents  of  this  act 
of  Congress  are  capsizores  mundarum.  They  seek  to 
disturb  the  order  of  the  universe,  to  bring  industry 
to  a  dead  stand,  to  throw  the  earth  out  of  its  orbit, 
and  send  it  into  the  blackness  of  darkness  forever! 
(Great  sensation.)  Let  all  discussion  of  this  act  be 
discouraged,  and  put  down,  as  we  value  our  lives  and 
the  lives  of  our  children  to  the  latest  posterity.  Let 
all  seditious  attempts,  under  the  pretense  of  testing 
its  validity  in  the  courts,  be  put  down,  peaceably  if 
we  may,  but,  if  we  must,  —  then  —  otherwise !  (Tre 
mendous  applause.) 

It  is  said,  I  am  told,  that  the  act  takes  away  the 
trial  by  jury.  I  apprehend  that  it  does  no  such  thing. 
(Hear,  hear.)  The  chief  facts  to  be  tried  are,  whether 
the  person  seized  is  or  is  not  a  native  of  the  Southern 
hemisphere,  whether  the  person  who  seizes  him  is 
himself  from  the  Southern  hemisphere,  and  whether 
Gravitation  is  in  fact  in  danger.  Now  there  is  not  a 
word  in  the  act  to  prohibit  the  trial  of  these  questions 


THE  GREAT  GRAVITATION  MEETING        171 

by  a  jury.  (Hear,  hear.)  It  is  true,  the  trial  is  not 
to  be  had  here.  But  it  may  be  had  elsewhere.  And 
what  objection  is  there  to  the  party  having  his  trial 
in  the  place  from  which  he  came,  his  birthplace,  his 
original  home,  and  the  home  of  both  the  parties  to 
the  suit?  I  can  see  none.  There  are  objections  founded 
on  facts,  and  objections  founded  on  pretense.  I  take 
this  to  be  one  of  the  latter.  (Applause.) 

But,  fellow  citizens,  it  is  high  time  that  I  gave  way 
for  those  whose  greater  powers  will  enable  them  to 
throw  more  light  on  this  subject.  (Go  on !  go  on !  — 
Cheers.)  No,  gentlemen,  my  task  is  done.  I  end  as  I 
began.  This  act  of  Congress  is  the  law  of  the  land. 
In  my  judgment,  every  good  citizen  will  acquiesce 
in  it.  Those  who  seek  to  disturb  or  repeal  it,  desire  to 
throw  the  earth  out  of  its  orbit  and  unmake  the  uni 
verse.  (Tremendous  sensation.)  I  am  for  Gravitation, 
at  all  times,  under  all  circumstances,  without  respect  to 
latitude  or  longitude,  without  compromise !  (Cheers.) 
It  must  be  preserved  by  individual  efforts,  by  each 
man  as  a  unit.  I  am  a  unit!  A  Massachusetts  unit. 
A  Faneuil  Hall  unit.  A  Marshfield  unit.  (Cheers.) 
As  for  me,  my  part  is  taken.  Standing  here  in  Faneuil 
Hall,  with  Bunker  Hill  before  me,  with  Lexington  and 
Concord  on  my  left  hand,  and  the  Rock  of  Plymouth 
on  my  right,  I  give  my  heart  and  hand  for  this  law. 
(Tremendous  and  long-continued  applause.) 

The  Hon.  Rufus  Choate  sprang  to  the  platform, 
and  was  greeted  as  his  unbounded  popularity  de 
serves.  It  is  impossible  to  give  more  than  a  faint 
sketch  of  the  brilliancy  of  his  speech.  It  is  reported 
for  us  as  follows:  — 

What,  fellow  citizens?  What  is  it  that  has  filled  old 
Faneuil  to  the  brim  to-night  —  drawn  together  the 


172  RICHARD  HENRY  DANA,  JR. 

thousands  of  Boston  into  this  concentration  of  anx 
ious  energy?  What  is  it  that  gives  this  one  pulsation 
to  this  moving  mass?  What  has  called  you,  Mr.  Presi 
dent  —  what  has  called  us  all  from  our  firesides,  and 
left  a  thousand  lonely  and  saddened  hearths  in  our 
home-loving,  curfew-keeping  city?  (Cheer.) 

Nothing,  nothing  but  to  give  our  aid  and  counte 
nance  to  that  great,  vital  principle,  now  in  its  first 
peril,  since  the  morning  stars  sang  together  —  the 
law  of  Gravitation!  The  sight  of  these  thousands 
wending  their  way,  with  the  faith  and  devotion  of 
second  infancy,  to  the  cradle  of  their  Liberties 
(Cheers),  and  to  aid  in  upholding  the  law  of  the 
Universe,  is  a  spectacle  more  noble  than  fleets  of 
mightiest  admirals  seen  beneath  the  lifted  cloud  of 
battle  —  more  sublime  than  serried  ranks  of  soldiers 
moving,  by  tens  of  thousands,  to  the  music  of  an  un 
just  glory!  (Cheers.) 

The  Law  of  Gravitation !  What  madness  —  what 
worse  than  Worcester  or  McLean  asylum  madness  — 
to  dream  of  its  suspension,  to  entertain  the  flitting 
shadow  of  thought  of  its  repeal?  Why,  let  but  the 
last,  lingering,  lifeless  leaf  of  a  decayed  December 
foliage  fall  from  its  parent  trunk  against  the  law  of 
Gravitation,  and  there  were  a  discord  through  the 
universe  not  to  be  healed  until  the  sea  shall  give  up 
its  dead !  (Tremendous  applause.)  In  the  new  Heaven 
and  new  earth  of  the  Apocalyptic  vision,  there  may 
be  a  new  law  of  Gravitation,  or  no  Gravitation  at  all ; 
but  I  respectfully  suggest  a  doubt,  a  query,  whether 
we  had  best  begin  the  experiment  in  the  Eighth  Dis 
trict  quite  yet.  (Laughter  and  cheering.) 

Congress  has  passed  a  law  for  the  sustaining  of  this 
principle  which  has  worked  pretty  well  probably  for 


THE  GREAT  GRAVITATION  MEETING        173 

some  myriads  of  centuries;  and  our  friends  are  in 
ecstasies  of  indignation.  All  their  hopes  of  confusion, 
their  brightest  visions  of  disorder  are  dispelled  in  a 
moment.  What  else  can  Congress  do?  Congress  can 
not  move  the  mountains,  or  take  the  seas  in  its  hand. 
It  cannot  change  Mt.  Washington  for  Teneriffe,  or 
the  Mississippi  for  the  Ayacucho.  Man,  man  is  the 
great  locomotive !  If  the  mountain  cannot  go  to  Ma 
homet,  the  prophet  must  go  to  the  mountain.  Man  is 
the  shifting  ballast  in  the  voyage  of  our  planet  through 
infinite  space.  (Cheers.)  If,  then,  man  must  be  made 
to  preserve  the  equilibrium  of  the  globe,  and  the 
Southern  hemisphere  has  notoriously  less  land  than 
the  Northern,  what  more  just,  more  humane  than 
to  send  back,  at  our  own  expense,  the  exiles  of  the 
Sunny  South?  Instead  of  shouldering  our  muskets 
and  crying  our  eyes  out  over  this  law,  we  should  shed 
tears  of  gratitude  at  the  humanity  and  equity  of  its 
beneficent  provisions.  Even  if,  by  mistake,  a  North 
ern  man  should  be  taken,  do  not  half  the  active  young 
men  of  New  England  make  themselves  new  homes 
the  world  over?  Shall  we  pity  the  victim  of  this  law 
as  he  floats  over  the  broad  Atlantic,  with  the  stars 
and  stripes  above  him,  as  he  is  breathed  along  to  his 
new  home  by  the  gentle  trade-winds  of  the  tropics,  — 
as  the  evening  breezes  from  broad  Brazil  steal  over 
the  moonlit  sea  to  print  the  first  kiss  of  welcome  on 
his  heated  forehead!  Is  he  sent  to  poverty  when  he 
gathers  diamonds  like  dewdrops  in  the  genial  Bra 
zilian  sands?  Is  he  sent  to  a  prison  when  he  throws 
the  lasso  and  bounds  over  the  broad  savannahs  of 
the  Amazon  and  Orinoke?  Is  it  a  dungeon  he  is  sunk 
into  while  he  mounts  the  Andes,  and  soars  above  the 
clouds,  the  playmate  of  the  vulture  and  the  condor? 


174  RICHARD  HENRY  DANA,  JR. 

Is  he  driven  to  barbarism  as  he  sips  his  coffee  under 
the  piazza  of  the  Castilian?  Is  he  an  outcast  when  the 
dark  eyes  of  sefioritas  flash  welcome  from  their  half- 
uplifted  mantles?  Away  with  this  mock  philanthropy, 
which  weeps  over  the  woes  of  a  reinstated  exile,  and 
can  find  no  wrongs  in  the  world  to  redress  but  his ! 

But,  forsooth,  his  Southern  home  is  to  be  closed 
against  him  until  a  jury  has  said  he  shall  go!  Did  he 
wait  for  a  jury  when  he  came  away?  (Laughter.)  By 
and  by  it  will  be  unconstitutional  for  a  railroad  car 
or  a  ferry-boat  to  start  without  a  jury.  But  Congress 
would  willingly  gratify  their  idiosyncrasy,  their  in 
fatuation,  for  twelve  men,  if  there  were  the  least  need 
of  it  in  the  world. 

It  has  been  asked  to-night,  and  no  man  can  answer 
it,  why  not  try  the  question  of  nativity  and  removal 
at  the  place  where  the  party  was  born  and  from 
which  he  came?  And  there  he  may  have  his  trial, 
and  welcome.  There  the  jury  may  be  empaneled  of 
his  own  countrymen,  sworn  by  the  bell,  book,  and 
candle  of  his  own  religion,  and  his  is  the  verdict  of  a 
South  American  instead  of  a  North  American  panel. 
But  my  word  for  it,  not  one  in  ten  of  them  will  ask 
for  their  suit.  If  it  takes  twelve  men  to  prevent  their 
going  back,  it  will  take  a  thousand  to  drive  them 
here  again.  (Applause  and  laughter.) 

But  why  waste  words  on  this  weak  and  wicked 
attempt  to  obstruct  the  preservation  of  the  earth's 
equilibrium,  the  gravitation  of  all  matter;  to  bring 
Chaos  back  again?  Our  principle  is  the  principle 
which  holds  the  elements  together,  our  strength  is 
the  arm  of  the  universal  law ! 

The  distinguished  orator  sank  to  his  seat  amid 
thunders  of  applause. 


THE  GREAT  GRAVITATION  MEETING        175 

Mr.  Webster  then  again  came  forward,  and  said 
he  would  read  a  letter  from  an  eminent  patriot  and 
personal  friend;  a  man  whom  Massachusetts  had  al 
ways  delighted  to  honor,  the  Hon.  Lewis  Cass.  (Three 
cheers  for  Lewis  Cass !) 

DETROIT,  Tuesday,  Nov.  12. 

MY  DEAR  FRIEND  :  —  Circumstances  prevent  my  attending 
your  great  Gravitation  Meeting  in  Boston.  —  Deeply  as  I  re 
gret  the  causes  which  have  made  these  meetings  necessary,  I 
rejoice  in  the  spirit  of  devotion  to  the  laws  of  God  and  nature 
which  these  causes  have  developed.  When  we  reflect  on  the  con 
sequences  of  a  repeal  or  supervision  of  the  law  of  Gravitation 
(which  a  repeal  or  supervision  of  the  late  act  of  Congress  of  course 
involves);  when  we  consider  the  noise  and  confusion  such  an 
event  would  doubtless  create  in  the  physical  world,  we  hardly 
know  whether  most  to  wonder  at  or  abhor  the  practices  of  those 
who  put  us  in  such  peril. 

If  Gravitation  is  suspended,  who  can  doubt  that  commerce 
is  suspended  also  ?  How,  then,  can  the  exiles  of  Hungary  flee 
from  the  butcheries  of  Haynau  to  the  only  land  in  the  world 
where  free  principles  are  consistently  carried  out,  to  all  classes, 
with  no  other  distinction  than  that  of  color?  How  can  the  Aus 
trian  Ambassador  be  recalled,  or  a  mission  of  encouragement 
be  dispatched  to  down-trodden  Hungary?  The  fund  for  the 
Michigan  Canal  and  for  our  lighthouses  will  have  been  wasted. 
If  the  results  can  be  traced  to  our  remissness,  the  cause  of  free 
principles  will  be  retarded  in  Europe.  Nor  are  these  the  only 
consequences,  for  there  is  great  reason  to  apprehend  a  general 
derangement  of  the  physical  laws  of  the  earth,  resulting  in  the 
most  serious  consequences  not  only  to  our  own  country  but  to 
the  world,  compared  with  which  the  banishment  of  the  Court  and 
the  family  of  Louis  Philippe,  and  the  defeat  of  the  Democracy 
in  1848,  are  matters  of  trifling  moment. 

Being  called  upon  for  an  exposition  of  my  Nicholson  Letter 
to  the  Nashville  Convention,  as  to  the  meaning  of  which  there 
seems  to  be  a  strange  misapprehension  between  the  two  parties 


176  RICHARD  HENRY  DANA,  JR. 

in  that  body,  I  am  obliged  to  terminate  my  communication 
earlier  than  I  otherwise  would  have  done.  I  beg  you  to  present 
my  best  wishes  to  the  people  of  Massachusetts,  whose  best  inter 
ests  I  have  so  long  but  so  unworthily  endeavored  to  subserve, 
and  believe  me, 

Yours  truly,  LEWIS  CASS. 

To  HON.  DANIEL  WEBSTER. 

This  letter  was  received  with  warm  demonstra 
tions  of  applause. 

Hon.  B.  F.  Hallett  next  addressed  the  meeting. 
His  remarks  were  quite  extended.  At  the  close  of 
his  speech  he  paid  a  glowing  tribute  to  the  memory 
of  Sir  Isaac  Newton,  who,  he  had  been  told,  was  a 
distinguished  advocate  and  expounder  of  Gravitation 
in  England,  against  the  efforts  of  an  insolent  landed 
aristocracy  and  overgrown  monied  corporations.  He 
concluded  by  moving  that  a  subscription  be  raised, 
upon  the  spot,  to  procure  portraits  of  Sir  Isaac  New 
ton,  Senator  Foote  of  Mississippi,  and  the  principal 
orator  of  the  evening,  to  be  hung  in  Faneuil  Hall, 
surmounted  by  the  American  Eagle,  and  by  a  streamer 
hanging  from  the  Eagle's  mouth,  on  which  should  be 
printed,  in  golden  letters,  the  words  "Gravitation 
and  Equilibrium." 

This  proposal  was  received  with  applause,  and  we 
rejoice  to  add  that  the  requisite  subscription  was 
made  on  the  spot. 

The  following  preamble  and  resolutions  were  then 
adopted:  — 

Whereas,  We  regard  the  interests  of  the  cotton  manufactures, 
shoe  and  leather  trade,  the  freighting  trade  to  the  South  and 
Europe,  the  making  of  negro  cloths,  machinery  and  firearms, 
as  the  paramount  interests  and  highest  questions  for  a  great 


THE  GREAT  GRAVITATION  MEETING        177 

and  free  people  to  entertain,  as  the  causes  of  the  formation  of 
our  Union  and  of  the  Revolution  itself,  and  see  that  these  must 
be  destroyed  by  any  shock  to  the  law  of  gravitation,  or  to  any 
law  of  Congress  sustaining  the  law  of  gravitation;  and 

Whereas,  The  agricultural  and  farming  classes,  and  all  persons 
living  beyond  the  reach  of  tide-water,  have  always  been  the 
opponents  of  gravitation  from  the  first;  and 

Whereas,  It  rests  with  the  merchants,  traders,  and  manufac 
tures  of  the  country,  living  within  reach  of  tide-waters,  to  sus 
tain  the  law  of  gravitation;  —  therefore 

Resolved,  That  the  late  act  of  Congress  shall  be  regarded  as 
a  part  of  the  law  of  nations,  a  compact  among  the  families  of 
men,  sacred,  unalterable  and  irrepealable. 

Resolved,  That  whoever  opposes  or  seeks  to  repeal  or  mate 
rially  alter  that  law,  seeks  to  destroy  the  law  of  gravitation  and 
the  equilibrium  of  the  earth,  is  a  foe  to  the  order  of  the  universe 
and  the  happiness  and  prosperity  of  the  human  race. 

Resolved,  That  disregarding  all  former  party  ties,  we  will  vote 
for  no  man,  for  any  State  or  National  office,  who  is  known  or 
suspected  to  be  opposed  to  the  late  act  of  Congress;  but  will 
vote  for  those  men  only,  of  whatever  party,  who  are  pledged  to 
the  policy  of  preserving  it  inviolate  to  us  and  our  posterity. 

The  meeting  adjourned  to  meet  on  'Change  at  ten 
o'clock,  to-morrow. 


IX 

ARGUMENT  ON  BEHALF  OF  CHARLES  G. 
DAVIS,  ESQ.,  CHARGED  WITH  AIDING 
AND  ABETTING  IN  THE  ESCAPE  OF  A 
FUGITIVE  SLAVE  CALLED  SHADRACH 

[This  argument  is  of  especial  historical,  interest,  as  it  exhibits 
the  great  power  of  patronage  and  official  position,  as  well  as  social 
prestige,  used  to  deter  the  defense  of  fugitive  slaves.  Shadrach 
was  seized  as  a  fugitive  in  Boston,  February  15,  1851,  taken  to 
court  for  a  hearing,  and  escaped  the  same  day.  Mr.  Davis,  who 
had  been  one  of  the  counsel  for  Shadrach,  was  accused  of  aiding 
in  this  escape.  The  case  against  Mr.  Davis  WSLS  tried  before  the 
Hon.  B.  F.  Hallett,  United  States  Commissioner,  on  February 
20  to  24.  On  February  26,  1851,  Mr.  Davis  was  discharged  by 
the  Commissioner,  who  found  no  case  proven  against  him.] 

MAY  IT  PLEASE  YOUR  HONOR:  — 

Certainly,  Mr.  Commissioner,  we  are  assembled 
here,  this  morning,  under  extraordinary  circumstances. 
I  am  not  aware  that  since  the  foundations  of  our 
institutions  were  laid,  since  we  became  an  independ 
ent  people,  since  the  Commonwealth  of  Massachu 
setts  had  an  independent  existence,  —  I  am  not  aware 
that  a  case  similar  to  this  has  once  arisen.  I  do  not 
know  that  ever  before  in  our  history  a  judicial  tribu 
nal  has  sat,  even  for  a  preliminary  hearing,  upon  a 
gentleman  of  education,  a  counselor  of  the  law,  sworn 
doubly,  as  a  Justice  of  the  Peace  and  as  a  counselor 
in  all  the  courts,  to  sustain  the  Constitution  of  the 
United  States  and  the  laws  made  in  pursuance  thereof, 


ARGUMENT  FOR  CHARLES  G.  DAVIS         179 

— a  gentleman  of  property,  family,  friends,  reputation, 
who  has  more  at  stake  in  the  preservation  of  these 
institutions  than  nine  in  ten  of  those  who  charge  him 
with  this  crime;  —  who  stands  charged  with  an  of 
fense  (in  the  construction  now  attempted  to  be  put 
upon  the  statute)  of  a  treasonable  character,  a  trea 
sonable  misdemeanor,  an  attempt  to  rescue  a  person 
from  the  law  by  force,  an  attempt  to  set  up  violence 
against  the  law  of  the  land. 

Therefore  it  is  that  this  trial  attracts  this  unusual 
interest.  It  is  not  that,  so  far  as  this  defendant  is 
concerned,  the  question  whether  he  be  bound  over 
here,  or  whether  the  District  Attorney  takes  his  case 
directly  to  the  Grand  Jury,  can  make  the  slightest 
difference  in  the  world;  but  because  the  decision  of 
this  tribunal,  though  only  preliminary,  will  have 
great  effect  upon  the  community,  and  will  be  carried 
throughout  the  United  States.  It  is  because  of  the 
political  weight  attached  to  it,  that  such  anxiety  is 
felt  for  the  result.  For  the  simple  rescue  of  a  prisoner 
out  of  the  hands  of  an  officer  is  a  thing  that  occurs 
in  our  streets  not  very  unfrequently,  and  often  in 
other  cities.  It  might  have  occurred  upstairs,  and 
not  have  attracted  a  moment's  attention. 

Who,  Mr.  Commissioner,  is  the  defendant  at  the 
bar?  I  have  said  that  he  is  a  Justice  of  the  Peace, 
sworn  to  sustain  the  laws,  a  counselor  of  this  court 
and  of  all  the  courts  of  the  United  States  in  this  State, 
sworn  doubly  to  sustain  the  laws.  He  is  a  gentleman 
of  property  and  education,  whose  professional  repu 
tation  and  emolument  depend  upon  sustaining  law 
against  force;  a  man  whose  ancestors,  of  the  ancient 
Pilgrim  stock  of  Plymouth,  are  among  those  who  laid 
the  foundations  of  the  institutions  that  we  enjoy.  He 


180  RICHARD  HENRY  DANA,  JR. 

has  at  this  moment  so  much  interest  in  the  way  of 
personal  pride,  historical  recollections,  property,  in 
family,  reputation,  honor,  and  emolument  in  these 
courts  —  so  much  at  stake  as  to  render  it  impossible 
to  believe,  except  on  the  strongest  confirmation,  that 
he  should  be  guilty  of  the  offense  charged  against 
him  at  this  moment. 

The  charge  against  the  defendant  involves  the 
meanness  of  instigating  others  to  an  act  he  dares  not 
commit  himself,  of  putting  forward  obscure  and  op 
pressed  men,  to  dare  the  dangers  and  bear  the  pen 
alties  from  which  he  screens  himself;  meantime  hold 
ing  up  his  hand  and  swearing  to  obey  the  laws  of  his 
country  which  he  is  urging  others  forward  to  violate. 

Since,  then,  my  friend  has  done  me  the  honor  to 
ask  me  to  appear  for  him  before  this  tribunal,  from 
among  others  so  much  better  qualified,  I  feel  that  I 
am  placed  in  circumstances  calling  for  some  allowance, 
some  liberty  for  feeling  and  expression.  We  think 
ourselves  happy  that  in  this  state  trial,  this  political 
state  trial,  we  appear  before  one  who  has  been  known 
through  his  whole  life  as  not  only  the  advocate  of  the 
largest  liberty,  but  the  asserter  and  maintainer  of 
the  largest  liberty  of  speech  and  action,  at  the  bar, 
in  the  press,  and  in  the  forum,  carrying  those  ideas 
to  an  extent  to  which,  I  confess,  with  my  comparative 
conservatism,  I  have  not  always  seen  my  way  clear  to 
follow.  Therefore,  I  shall  look  for  as  large  a  liberty 
as  the  case  will  allow  me,  in  addressing  myself  to  this 
court;  in  bringing  forward  all  considerations,  in  sug 
gesting  all  possible  motives,  in  commenting  upon  all 
the  circumstances  that  lie  about  this  cause.  At  the 
same  time  I  shall  expect  from  the  person  who  sits 
clothed  with  the  authority  of  an  executive  whose  will 


ARGUMENT  FOR  CHARLES  G.  DAVIS         181 

is  as  powerful  as  that  of  any  sovereign  in  Christendom, 
except  the  Czar  of  the  Russias  —  I  shall  expect  from 
him  no  unnecessary  interruptions,  no  extraordinary 
appeals,  no  traveling  out  of  the  usual  course  of  a 
simple  judicial  proceeding. 

Why  is  it  that  the  defendant  stands  here  at  this 
bar  a  prisoner?  How  is  this  extraordinary  spectacle 
to  be  accounted  for?  I  beg  leave  to  submit  that  the 
whole  history  is  simply  this.  There  has  been  a  law 
passed  in  the  year  1850,  by  the  Congress  of  the  United 
States,  which  subjects  certain  persons,  if  they  be  fugi 
tive  slaves,  or  whether  they  be  or  not,  subjects  them 
to  be  arrested  and  brought  into  court,  to  have  the 
question  of  their  liberty  and  that  of  their  seed  forever, 
tried  by  a  so-called  judicial  tribunal.  Those  persons 
are  mostly  poor.  They  belong  to  an  oppressed  class. 
They  are  the  poor  plebeians,  while  we  are  the  patri 
cians  of  our  community.  They  are  of  all  the  people 
in  the  world  those  who  most  need  the  protection  of 
courts  of  justice.  I  think  the  court  will  agree  with  me 
that  if  there  is  a  single  duty  within  the  range  of  the 
duties  of  a  counselor  of  this  court  which  it  is  honor 
able  for  him  to  perform,  and  in  the  performance  of 
which  he  ought  to  have  the  encouragement  of  the 
court,  it  is  when  he  comes  forward  voluntarily  to 
offer  his  services  for  a  man  arrested  as  a  fugitive  slave. 
Therefore  it  is  that  I  think  it  somewhat  unfortunate 
the  District  Attorney  should  have  thought  it  neces 
sary  to  arrest  counsel.  If  there  be  a  person  against 
whom  no  intimidation  should  be  used,  it  is  the  coun 
sel  for  a  poor,  unprotected  fugitive  from  captivity.  - 
The  question  is,  whether  a  man  and  his  posterity  for 
ever,  the  fruit  of  his  body,  shall  be  slave  or  free.  It 
is  to  be  decided  on  legal  principles.  If  there  is  a  case 


182  RICHARD  HENRY  DANA,  JR. 

in  the  world  that  calls  for  legal  knowledge  and  abil 
ity,  —  that  calls  for  counselors  to  come  in  and  labor 
without  money  or  price,  —  it  is  a  case  like  this.  I 
think  it  a  monstrous  thing,  unless  it  be  a  case  beyond 
doubt,  that  counsel  should  have  been  selected  to  be 
proceeded  against  in  this  manner. 

I  take  the  facts  to  be  these:  Mr.  Davis,  being  a 
counselor  of  this  court,  and  possessed  of  no  small  sym 
pathy  for  persons  in  peril  of  their  freedom,  when  it 
was  known  that  a  person  claimed  as  a  fugitive  slave  was 
arrested,  and  in  a  few  hours,  perhaps,  to  be  sent  into 
eternal  servitude,  Mr.  Davis  steps  over  to  my  office 
and  suggests  to  me  that  we  offer  our  services  as  coun 
sel.  He  leaves  his  business,  which  is  large,  while  five 
courts  are  in  session  in  this  building.  He  sits  here  that 
whole  Saturday  forenoon  by  the  prisoner,  to  whom  he 
is  recommended  by  Mr.  Morton.  He  is  twice  spoken  of 
to  Mr.  Riley  by  the  prisoner,  as  one  of  his  counsel. 
He  sits  from  eleven  to  two  o'clock,  absorbed  in  this 
case,  his  feelings  necessarily  excited  (and  I  should  be 
ashamed  of  him  if  they  were  not  excited),  but  his  in 
tellectual  powers  devoted  to  the  points  of  law  in  this 
case,  and  your  Honor  knows  that  the  points  are  va 
rious  and  new. 

By  the  courtesy  of  the  marshal,  the  counsel  were 
permitted  to  remain  here,  because  the  marshal  had 
not  yet  determined  where  to  keep  his  prisoner.  They 
remained  until  the  time  for  the  prisoner's  meal.  When 
the  business  is  over,  they  leave.  Some  one  must  go 
out  first,  and  somebody  must  go  out  last.  It  is  no 
thing  more  nor  less  than  the  old  rule  of  "The  Devil 
take  the  hindermost."  Mr.  List  leaves  the  court-room 
— Mr.  Warren  goes  out.  All  the  officers  are  to  go 
to  dinner,  and  the  door  is  to  be  opened  and  closed 


ARGUMENT  FOR  CHARLES  G.  DAVIS         183 

each  time.  Dinner  is  to  be  brought  in.  Twenty  times 
that  door  is  to  be  opened. 

In  the  mean  time  about  that  door  is  collected  a 
small  number  of  persons  of  the  same  color  with  the 
person  then  at  the  bar,  very  likely,  perhaps,  to  make 
a  rescue,  some  advising  against  it,  and  some  for  it, 
with  considerable  excitement.  Mr.  Davis  slides  out 
of  that  passageway  and  goes  to  his  office.  Mr.  Wright 
is  prevented  from  going  by  the  crowd.  Not  a  blow  is 
struck.  Not  the  hair  of  a  man's  head  is  injured.  The 
prisoner  walks  off  with  his  friends,  straight  out  of 
this  Court  House,  and  no  more  than  twenty  or  thirty 
persons  have  done  the  deed.  Three  men  outside  of  the 
door  could  have  prevented  the  rescue.  Mr.  Riley  did 
not  suspect  it.  Mr.  Warren  did  not  suspect  it.  Mr. 
Homer  did  not  suspect  it.  Mr.  Wright  did  not  sus 
pect  it.  Nobody  suspected  it.  The  sudden  action  of 
a  small  body  of  men,  unexpected,  and  only  successful 
because  unexpected,  accomplished  it.  He  is  out  of 
the  reach  of  the  officers  in  a  moment,  and  there 's  the 
end  of  the  whole  business.  No  premeditation!  No 
plan!  Counsel  knowing  nothing  about  it!  Nobody 
suspecting  it,  and  the  whole  thing  over  in  one  minute! 

But,  may  it  please  the  Commissioner,  the  law  is 
violated  —  the  outrage  is  done.  This  is  a  case  of  great 
political  importance,  and  the  deputy  marshal  thinks 
it  his  duty  (I  think  in  rather  an  extraordinary  man 
ner),  instantly,  before  any  charge  is  made  against  him, 
before  any  official  inquiry  is  started,  to  issue  a  long 
affidavit,  sent  post-haste  to  every  newspaper,  and 
hurried  on  to  Washington,  —  Congress  in  session,  — 
a  delicate  question  there,  —  Northern  and  Southern 
men  arrayed  against  each  other.  Then  comes  an 
alarm.  Then  the  Executive  shrieks  out  a  proclamation. 


184  RICHARD  HENRY  DANA,  JR. 

A  standing  army  is  to  be  ordered  to  Boston.  All 
good  citizens  are  to  be  commanded  to  sustain  the  laws. 
The  country  thinks  that  mob  law  is  rioting  in  Boston 
— that  we  all  go  armed  to  the  teeth.  The  chief  magis 
trate  of  fifteen  millions  of  people  must  launch  against 
us  the  thunders  from  his  mighty  hand. 

In  the  mean  time,  we  poor,  innocent  citizens  are 
just  as  quiet,  just  as  peaceable,  just  as  confident  in 
our  own  laws,  just  as  capable  of  taking  care  of  our 
selves  on  Saturday  evening  as  on  Friday  morning. 
Only  some  frightened  innocents,  like  the  goose,  the 
duck  and  the  turkey  in  the  fable,  say  the  sky  is  fall 
ing,  and  they  must  go  and  tell  the  king! 

But  we  can  all  see  now  that  there  was  too  much 
alarm.  We  begin  already  to  feel  the  reaction.  A  state 
of  things  has  been  created  over  this  country  entirely 
unwarranted  by  the  circumstances.  And  I  trust  that 
the  Commissioner  will  be  able  to  say  to  the  country, 
say  to  His  Excellency  the  President  of  the  United 
States,  say  to  the  world,  that  nothing  of  this  sort  has 
occurred;  that  there  has  been  no  preconcerted  ac 
tion;  that  the  marshal  cleared  his  room,  and  every 
body  went  out  peaceably;  that  nobody  expected  the 
rescue;  that  there  was  no  crowd  in  the  court-room; 
but  the  blacks,  feeling  themselves  oppressed  and 
periled  by  this  law,  standing  at  that  door,  behind 
which  their  friend  and  companion  is  held  a  prisoner, 
rush  in,  almost  without  resistance,  carry  off  their 
prisoner,  and  not  a  blow  is  struck,  not  a  weapon  drawn, 
not  a  man  injured.  That  is  the  end  of  it.  There  is  no 
need  of  standing  armies  in  Boston!  And,  above  all, 
we  trust  that  the  Commissioner  will  be  able  to  say 
to  the  world,  to  the  President,  and  to  Congress,  that 
this  effort  was  the  unpremeditated,  irresistible  im- 


ARGUMENT  FOR  CHARLES  G.  DAVIS         185 

pulse  of  a  small  body  of  men,  acting  under  the  sense 
and  sight  of  oppression  and  impending  horrid  calam 
ities,  against  the  advice  of  some  of  their  own  number; 
and  that  no  gentleman  of  education,  no  counselor 
of  this  court  sworn  to  obey  the  law,  has  instigated 
these  poor  men  to  its  overthrow.  Massachusetts  is 
not  in  a  state  of  civil  war,  and  her  most  valued  citi 
zens  are  not  engaged  in  overturning  the  foundations 
of  civil  government. 

Why  should  the  criminal  proceedings  of  this  day 
have  taken  place  at  all?  What  is  the  evidence?  The 
learned  district  attorney  thought  proper  to  suggest 
to  the  Court  that  there  was  further  evidence  which 
might  be  presented  in  another  stage  of  this  proceed 
ing.  That,  I  am  sure,  fell  with  as  little  weight  upon 
the  mind  of  the  Commissioner  as  it  would  if  we,  on 
the  other  hand,  had  said,  as  is  the  fact,  that  we  have 
a  large  amount  of  evidence  that  might  yet  be  pre 
sented  in  behalf  of  Mr.  Davis.  This  is  not  a  game  of 
brag!  It  is  not  upon  evidence  that  is  not  here,  but 
upon  evidence  that  is  here,  that  this  case  is  to  be  de 
cided.  Here  has  been  mortified  pride,  here  has  been 
fear,  here  has  been  the  dread  spectre  of  executive 
power,  stalking  across  the  scene,  appalling  the  hearts 
and  disabling  the  judgments  of  men.  Excited  men 
suspect  everybody.  Every  person  who  ever  attended 
a  public  meeting  is  suspected.  A  political  party  is  to 
be  put  under  the  ban.  There  is  nothing  so  rash  as 
fear.  There  is  nothing  so  indiscriminating  as  fear. 
There  is  nothing  so  cruel  as  fear,  unless  it  be  mortified 
pride  —  and  here  they  both  concurred. 

Instructions  come  from  a  distant  executive  power 
that  knows  nothing  of  the  facts.  And  the  fear  of  that 
power  and  patronage  is  the  reason,  may  it  please  the 


186  RICHARD  HENRY  DANA,  JR. 

Commissioner,  why  suddenly,  on  Saturday  or  Sunday, 
before  the  subject  can  be  examined  and  the  truth 
ascertained,  a  warrant  is  got  out  against  a  person  of 
the  character  and  position  of  Mr.  Davis.  But  when 
we  look  at  things  in  their  natural  light,  when  there  is 
a  calm  investigation  of  the  facts,  I  think  the  govern 
ment  will  see  and  regret  its  rashness  and  delusion. 

I  understand,  may  it  please  the  Commissioner,  that 
there  is  to  be  a  great  deal  done  on  this  case,  of  an 
unusual  character.  We  have  been  threatened  with 
the  reading  of  newspapers;  and  public  meetings,  and 
political  principles  are  to  be  charged  as  treasonable. 
Yes !  political  considerations  are  brought  to  bear.  We 
cannot  tell  what  limit  is  to  be  put  to  this.  And  so,  not 
knowing  what  is  before  me,  with  no  ordinary  rules  of 
procedure  to  guide  me,  the  Commissioner  will  allow  me 
to  try  to  anticipate  the  attacks  as  well  as  I  can.  For 
having  had  it  intimated  that  the  argument  will  not  fol 
low  legal  evidence,  but  extracts  from  newspapers  — 

MR.  LUNT.  That  is  very  strong.  I  have  offered 
you  everything  of  that  kind  that  I  have  to  say. 

THE  COMMISSIONER.  The  gentleman  proposes  to 
read,  as  part  of  his  argument,  an  article  from  the  news 
papers. 

MR.  DANA.  He  proposes  to  read  it  as  evidence,  to 
affect  the  mind  of  the  court  on  the  facts.  I  cannot 
object  to  it  now.  When  it  is  offered,  I  have  no  doubt 
it  will  be  properly  met  by  the  Commissioner. 

I  say,  not  knowing  what  is  to  come  upon  me,  I  must 
take  a  pretty  wide  margin.  In  that  view  of  the  case, 
it  will  not  be  improper  if  I  state  what  I  understand  to 
be  the  true  position  of  Mr.  Davis,  with  reference  to 
the  principles  involved  in  this  case. 


ARGUMENT  FOR  CHARLES  G.  DAVIS         187 

May  it  please  your  Honor,  we  are  not  subjects  of  a 
monarchy,  which  has  put  laws  upon  us  that  we  have 
no  hand  in  making.  I  do  not  hesitate  to  say,  here, 
that  if  the  act  of  1850  had  been  imposed  upon  us,  a 
subject  people,  by  a  monarchy,  we  should  have  re 
belled  as  one  man.  I  do  not  hesitate  to  say  that  if 
this  law  had  been  imposed  upon  us  as  a  province,  by 
a  mother  country,  without  our  participation  in  the 
act,  we  should  have  rebelled  as  one  man. 

But  we  are  a  republic.  We  make  our  own  laws.  We 
choose  our  own  lawgivers.  We  obey  the  laws  we  make 
and  we  make  the  laws  we  obey.  This  law  was  consti 
tutionally  passed,  though  not  constitutional,  we  think, 
in  its  provisions.  It  is  the  law  until  repealed  or  ju 
dicially  abrogated. 

Who  passed  this  law?  It  was  passed  by  the  vote  of 
the  representative  of  our  own  city,  whom  we  sent 
there  by  our  own  votes.  It  was  advocated  by  our  own 
senator.  It  was  passed  by  the  aid  of  Northern  votes. 
Where  is  the  remedy?  It  strikes  me  that  the  state 
ment  of  the  case  shows  where  the  remedy  is.  It  is  in 
the  hands  of  the  people.  It  is  not  in  standing  behind 
and  urging  on  poor  men  to  put  themselves  in  the  can 
non's  mouth.  It  is  political  courage  that  is  wanted. 
Courage  shown  in  speech,  through  the  pen,  and 
through  the  ballot-box. 

But  be  it  known  that  all  I  have  said  is  on  the  idea 
that  this  is  a  repealable  law.  If  we  are  to  be  told  that 
this  is  a  part  of  the  organic  law,  sunk  down  deep  into 
national  compact,  and  never  to  be  repealed,  —  then 
neither  you  nor  I  can  answer  for  the  consequences. 
But  now  we  can  say  that  it  is  nothing  but  an  act,  that 
may  be  repealed  to-morrow.  Take  from  us  that  great 
argument,  and  what  can  the  defendant  and  myself 


188  RICHARD  HENRY  DANA,  JR. 

do?  What  can  the  defendant  say  to  discourage  col 
ored  men  from  the  use  of  force?  You  take  from  him 
his  great  means  of  influence.  I  never  have  been  one 
of  those,  and  I  think  the  defendant  has  never  been 
one  of  those,  who  would  throw  out  all  their  strength 
in  denunciations  against  Southern  men  born  to  their 
institution  of  slavery,  and  pass  over  those  Northern 
men  who  volunteer  to  bring  this  state  of  things  upon 
us. 

But  as  a  citizen,  within  constitutional  limits,  ad 
dressing  his  fellow  citizens  at  Faneuil  Hall  (where  I 
think  we  have  still  a  right  to  go),  discouraging  his 
fellow  citizens  from  violence,  writing  in  the  newspa 
pers  and  arguing  in  the  courts  of  law  to  the  same  pur 
pose,  saying  to  the  poor  trembling  negro,  "I  will  give 
you  a  habeas  corpus!  I  will  give  you  a  writ  of  per 
sonal  replevin!  I  will  aid  in  your  defense!  There  is 
no  need  of  violence!"  That  is  the  position  of  the  de 
fendant.  If  he  held  any  other  position,  if  the  defend 
ant  had  made  up  his  mind  that  here  was  a  case  for 
revolution,  that  here  was  a  case  for  civil  war  and 
bloodshed  —  if  I  know  anything  of  the  spirit  of  the 
defendant,  he  would  have  exhibited  himself  in  a  far 
different  manner.  He  would  have  resigned  his  posi 
tion  as  a  counselor  of  this  court,  with  all  its  profits 
and  honors;  he  would  put  himself  at  the  head,  instead 
of  urging  on  from  behind  a  class  of  ignorant,  excited 
men,  against  the  execution  of  the  laws. 

For  he  knows  perfectly  well  —  an  educated  man 
as  he  is,  who  has  studied  his  logic  and  metaphysics, 
and  who  is  not  unfamiliar  with  the  principles  of  the 
social  system  —  that  an  intentional,  forcible  resistance 
to  law  is,  in  its  nature,  revolution.  And  I  take  it,  no 
citizen  has  the  right  forcibly  to  violate  the  law,  unless 


ARGUMENT  FOR  CHARLES  G.  DAVIS         189 

he  is  prepared  for  revolution.  I  know  that  these  nice 
metaphysic  rays,  as  Burke  says,  piercing  into  the  dense 
medium  of  common  life,  are  refracted  and  distorted 
from  their  course.  But  an  educated  man,  with  a  dis 
ciplined  mind,  knows  that  he  has  no  right  to  encour 
age  others  to  forcible  resistance,  unless  he  is  ready  to 
take  the  risks  of  bringing  upon  the  community  all  the 
consequences  of  civil  war.  We  talk  about  a  higher  law 
on  the  subject  of  resistance  to  the  law.  And  there  is 
a  higher  law.  But  what  is  it?  It  is  the  right  to  pas 
sive  submission  to  penalties,  or,  it  is  the  active  ulti 
mate  right  of  revolution.  It  is  the  right  our  fathers 
took  to  themselves,  as  an  ultimate  remedy  for  un- 
supportable  evils.  It  means  war  and  bloodshed.  It 
is  a  case  altogether  out  of  law.  I  do  not  know  a  man 
educated  to  the  law  that  takes  any  other  ground. 

I  suppose  your  Honor  did  not  misapprehend  my 
last  remark  and  that  no  one  did.  When  I  said  re 
sistance  to  the  law,  I  did  not  mean  to  include  resist 
ance  for  the  purpose  of  raising  a  constitutional  issue. 
If  an  unconstitutional  tax  is  levied,  you  refuse  to  pay 
it  and  raise  the  constitutional  question.  This  right 
seems  to  be  lost  sight  of.  Persons  seem  to  think  we 
are  to  obey  statutes  and  not  the  Constitution.  I  un 
derstand  that  the  duty  to  the  Constitution  is  above 
the  duty  to  the  statutes.  And  therefore  I  say,  by  re 
sistance  to  the  law,  I  mean  combined,  systematic, 
forcible  resistance  to  the  law  for  the  purpose  of  over 
coming  all  law,  or  a  particular  law  in  all  cases ;  defying 
the  government  to  arms,  and  not  for  the  purpose  of 
raising  a  constitutional  issue.  For  this  is  within  the 
power,  nay,  it  is  sometimes  the  duty  of  a  citizen.  I 
do  not  know  a  position  in  which  a  person  does  a  greater 
good  to  his  fellow  citizens  than  when  he  does,  as  John 


190  RICHARD  HENRY  DANA,  JR. 

Hampden  did  on  the  question  of  ship-money,  raise, 
by  refusal  to  obey,  the  constitutional  issue.  And  in 
doing  this,  he  ought  to  have  the  approbation  of  the 
courts  and  their  ministers,  and  of  every  person  true 
to  the  Constitution  and  the  laws. 

At  the  same  time  that  it  is  important  to  maintain 
all  these  principles,  which  are  the  principles  of  the 
defendant,  I  also  think  this  is  a  season  when  we  must 
be  very  careful  that  certain  opposite  doctrines  are 
not  carried  too  far.  I  think  it  is  a  time,  this  day,  when 
it  becomes  a  judicial  tribunal  to  see  to  it  that  this 
extraordinary  combination  of  executive  power  and 
patronage,  this  alarm  and  this  anxiety  at  headquar 
ters,  does  not  lead  to  a  violation  of  private  rights  and 
personal  liberty.  I  think  there  is  a  pressure  brought 
to  bear  against  the  free  expression  of  popular  opinion, 
against  the  exercise  of  private  judgment  —  a  pressure 
felt  even  in  the  courts  of  law,  intimidating  counsel, 
overawing  witnesses,  and  making  the  defense  of  lib 
erty  a  peril.  There  is  the  pressure  of  fear  of  political 
disfranchisement,  of  social  ostracism,  which  weighs 
upon  this  community  like  a  nightmare.  We  feel  it 
everywhere.  We  know  that  we  make  sacrifices  when 
we  act  in  this  cause.  We  feel  that  we  suffer  under 
it.  And  if  this  course  is  persevered  in,  I  believe  that 
if  a  man  stands  at  that  bar  charged  with  being  a  fugi 
tive  slave,  he  will  find  it  difficult  to  obtain  counsel  in 
this  city  of  Boston,  except  from  a  small  body  of  men 
peculiarly  situated. 

I  think  that  two  years  ago  no  man  could  have  stood 
before  this  bar,  with  perpetual  servitude  impending 
over  him,  but  almost  the  entire  bar  would  have  come 
forward  for  his  defense.  No  man  would  have  dared  to 
decline.  But  because  of  this  pressure  of  political  and 


ARGUMENT  FOR  CHARLES  G.  DAVIS         191 

mercantile  interests,  it  is  said  that  Henry  Long  found 
it  difficult  to  obtain  counsel  in  New  York.  His  friends 
sent  to  Boston  to  obtain  an  eminent  man  here,  will 
ing  to  brave  public  feeling  by  acting  as  a  counselor 
in  a  case  of  slavery.  I  do  believe  that  this  danger  is 
to  be  regarded.  For  there  is,  at  times,  as  much  ser 
vility  in  democracies  as  in  monarchies.  I  was  struck 
with  the  remark  made  by  the  Earl  of  Carlisle,  in  his 
late  letter,  that  there  is  in  the  United  States  an  ab 
solute  submission  to  the  supposed  popular  opinion 
of  the  hour,  greater  than  he  ever  knew  in  any  other 
country  in  the  world.  This  is  something  in  which  no 
American  can  take  pride. 

The  history  of  democratic  governments  shows  that 
they  may  be  as  arbitrary  as  any  absolute  monarchy. 
Athens  and  Paris  have,  under  democratic  forms,  been 
the  standing  illustrations  of  tyranny  and  arbitrary 
rule  the  world  over.  Those  are  free  governments  in 
which  there  is  a  government  of  just  laws,  whether 
wrought  out  through  a  mixed  government,  as  in  Eng 
land,  or  wrought  out  as  here  by  the  people  themselves, 
and  cast  into  representative  forms.  And  now  we  see 
before  us  the  anomaly,  the  mortifying  contradiction, 
that  it  is  in  Great  Britain,  and  not  in  the  republic  of 
the  United  States,  with  our  venerated  Declaration  of 
Independence,  that  the  great  principles  of  Liberty 
and  Fraternity  are  practically  carried  out.  I  do  not 
mean  to  reflect  upon  any  person  or  persons  south  or 
north  of  a  certain  geographical  line.  Our  ancestors 
have  eaten  sour  grapes,  and  their  children's  teeth  are 
set  on  edge.  We  are  all  under  the  same  condemna 
tion.  We  are  all  responsible  for  these  laws  —  for 
slavery,  in  some  form  or  other.  Our  constitutional 
compact  makes  us  responsible,  and  we  cannot  escape 
from  our  share  of  the  evil  and  the  wrong. 


192  RICHARD  HENRY  DANA,  JR. 

But  I  must  leave  these  generalities,  and  pass  to  the 
particular  points  of  this  case.  This  is  the  first  case 
of  its  kind  that  has  occurred.  The  decision  in  this 
case  by  the  Commissioner,  though  not  matter  of  pre 
cedent,  yet  goes  to  the  profession,  the  press,  and  into 
the  private  records  of  the  country.  Therefore  we  may 
be  excused  if  we  pay  some  considerable  attention  to 
the  points  of  law  involved. 

In  the  first  place,  it  should  be  borne  in  mind  that 
a  fugitive  slave  is  not  a  criminal. 

A  few  years  ago,  it  was  thought  in  Massachusetts 
that  the  pursuing  of  slaves  was  criminal.  I  thank 
God,  it  is  not  yet  decided  that  the  escaping  from 
slavery  is  criminal.  It  is  a  mere  question  of  property 
under  this  act.  This  law  has  recognized  certain  pro 
perty  in  slaves,  claimed  in  a  certain  manner,  in  the  free 
States.  It  is  a  mere  question  of  property.  The  South 
ern  man  has  certain  property  in  his  slave.  That  pro 
perty  we  do  not  here  recognize.  But  if  the  property 
escapes,  and  he  pursues  it,  it  is  to  be  recognized  in 
this  court.  Consequently,  when  a  Southern  man 
comes  here  and  seizes  a  person  as  his  property,  he 
takes  him  at  his  own  risk,  a  risk  which  every  man 
takes  in  seizing  anything  as  his  property.  If  he  seizes 
the  wrong  property,  any  person  who  owns  it  may  resist 
him,  or  resist  his  officer  armed  with  a  warrant.  This 
has  been  ruled  in  various  cases. 

Your  Honor  recollects  in  the  8th  Pickering,  the 
case  of  the  Commonwealth  vs.  Kennard.  There  the 
writ  was  placed  in  the  hands  of  the  officer,  to  go  and 
attach  some  property  of  the  defendant.  He  attached 
certain  property  which  he  thought  belonged  to  the 
defendant.  He  showed  his  warrant,  but  the  true 
owners  put  him,  neck  and  heels,  out  of  the  house. 


ARGUMENT  FOR  CHARLES  G.  DAVIS         193 

They  were  indicted,  but  the  court  sustained  them 
in  their  act. 

In  a  civil  action,  if  the  wrong  person,  the  wrong 
horse,  or  the  wrong  slave  is  taken,  then  the  owner 
of  the  property  may  defend  it,  or  the  man  seized  may 
defend  himself  if  he  chooses.  There  is  a  different 
statute  on  the  subject  of  interfering  with  the  process 
of  the  courts,  with  judicial  processes,  under  which 
this  respondent  is  not  held  to  answer.  Whenever  this 
respondent  is  held  to  answer  for  resisting  judicial 
processes,  then  these  other  questions  may  be  raised. 
He  is  now  only  charged  with  rescuing  property  from 
the  owner,  or  the  officer  holding  for  the  owner. 

The  Constitution  says  that  any  person  charged  with 
crime,  and  escaping,  shall  be  delivered  up.  But  in 
the  case  of  the  fugitive  slave,  it  carefully  alters  the 
phraseology.  It  does  not  say  that  any  person  charged 
with  being  a  fugitive  slave  shall  be  surrendered,  but 
any  person  who  is  a  fugitive  slave.  In  the  one  case, 
the  charge  is  the  only  material  fact,  and  is  proved  by 
record.  In  the  other  case,  which  is  a  question  of  pro 
perty,  the  fact  of  property  is  the  foundation  of  the 
proceeding.  So,  in  this  act  of  1850,  the  sixth  section 
does  not  provide  that  any  person  who  claims  a  fugi 
tive  slave  shall  have  the  right  to  arrest  him,  but  any 
person  who  is  the  owner  of  a  fugitive  slave  may  ar 
rest  him.  So  in  the  seventh  section,  the  penalty  is 
not  inflicted  for  rescuing  a  person  who  is  claimed  as  a 
fugitive  slave,  but  for  rescuing  a  person  who  is  a  fugi 
tive  slave.  These  provisions  are  in  analogy  with  the 
law  of  property,  and  of  the  arrest  of  persons  and  pro 
perty,  in  all  other  cases.  As  bad  as  this  statute  is,  it 
is  not  quite  so  bad  as  its  friends  in  this  case  would 
make  it. 


194  RICHARD  HENRY  DANA,  JR. 

The  next  consideration  is,  that  it  is  not  necessary 
that  the  claim  should  be  made  by  virtue  of  legal  pro 
cess.  The  owner  or  his  agent  may  arrest  the  fugitive 
with  or  without  process.  The  offense  is  equally  com 
mitted,  and  the  penalty  is  the  same,  whether  the 
rescue  is  made  from  the  owner  without  process,  or 
from  the  officer  having  process.  This  fact,  with  the 
fact  that  there  is  a  general  statute  relating  to  the  of 
fense  of  obstructing  judicial  processes,  shows  that 
this  statute  assumes  the  facts  of  property  and  es 
cape  to  be  true,  and  applies  only  to  cases  in  which 
they  shall  prove  to  be  true. 

If  this  is  not  so,  what  is  the  result?  If  a  man  claims 
another,  without  process,  by  putting  his  hand  on  his 
shoulder,  though  the  man  may  be  as  free  as  you  or  I, 
if  he  resists,  or  his  friends  aid  him  in  resisting,  the 
offense  is  committed.  A  man  claimed  as  a  fugitive 
slave  has  been  rescued  or  aided  in  his  escape.  You  can 
not  refuse  to  deliver  up  a  colored  boy  or  girl  born  in 
your  house,  of  free  parents,  to  any  man  who  knocks 
at  your  door  and  claims  the  child,  with  or  without  a 
warrant,  without  incurring  the  penalties  of  this  act. 
This  monstrous  construction  can  never  be  admitted. 
I  beseech  the  Commissioner  to  reconsider  his  inti 
mated  opinion  on  this  point,  and  to  hold  the  gov 
ernment  to  preliminary  proof,  in  the  outset,  that 
the  person  rescued  was  a  slave  by  the  law  of  Virginia, 
was  the  slave  of  the  man  who  claimed  him,  and  was 
a  fugitive  from  that  state  of  slavery. 

What  evidence  has  there  been  of  any  of  these  facts? 
There  has  been  no  evidence  offered  that  the  prisoner 
was  a  slave  by  the  law  of  Virginia!  —  There  has  been 
no  evidence  offered  that  he  was  the  slave  of  Mr.  De- 
bree !  There  has  been  no  evidence  offered  that  he  was 


ARGUMENT  FOR  CHARLES  G.  DAVIS         195 

a  fugitive  from  a  state  of  slavery !  Mr.  Riley 's  return 
upon  the  warrant,  stating  that  he  had  arrested  "the 
within-named  Shadrach,"  was  admitted  as  evidence. 
I  solemnly  protested  against  the  reception  of  the  re 
turn  as  evidence  in  a  criminal  proceeding  between 
other  parties;  but  it  was  received,  and  for  a  while  held 
to  be  conclusive.  But  in  answer  to  my  question,  Mr. 
Riley  replied  that  he  did  not  know  the  man  he  ar 
rested  to  be  the  man  named  in  the  warrant.  And  how 
could  he  know  it?  This  nullified  the  return,  and  the 
government  had  no  evidence.  The  district  attorney 
saw  this,  and  rising  in  his  seat,  in  a  threatening  tone, 
said  to  Mr.  Riley,  "I  warn  you,  sir,  not  to  give  that 
testimony!"  The  testimony  was  true,  and  it  was  ad 
mitted  by  the  court.  Why  was  Mr.  Riley  warned? 
He  was  warned  for  private  reasons.  It  was  an  official 
warning,  by  the  agent  of  the  executive  to  one  of  its 
servants. 

MR.  LUNT.  I  deny  that  it  was  a  private  warning. 
It  was  public,  and  for  proper  reasons. 

MR.  DANA.  It  was  for  private,  or  secret  reasons,  not 
given,  not  apparent,  — some  political  or  governmental 
terror,  known  only  to  the  parties.  There  is  no  escape 
from  this.  The  bar  saw  it.  The  audience  saw  it.  It  is 
graven  with  a  pen  of  iron,  and  laid  up  in  the  rock 
forever ! 

All  evidence  of  identity  having  failed,  the  govern 
ment  is  driven  to  its  last  shift.  Colonel  Thomas  is 
called  in,  and  he  testifies  that  the  agent  of  Mr.  Debree 
said  to  him,  in  the  court-room,  when  the  prisoner 
was  brought  in,  "That  is  my  boy!"  This  is  hearsay 
evidence  upon  hearsay  evidence.  It  is  monstrous !  Yet 


196  RICHARD  HENRY  DANA,  JR. 

on  this  slender  thread  of  illegal  testimony  hung  all 
the  evidence  of  the  facts  of  identity,  slavery,  and  es 
cape.  If  it  is  enough  to  prove  that  the  man  rescued 
was  the  man  in  custody,  and  upon  whom  the  court 
was  sitting  in  fact,  no  one  denies  it.  But  if  it  be  neces 
sary  to  show  that  the  man  in  custody  was  the  man 
named  in  the  warrant,  or  that  he  was  a  slave,  and  a 
fugitive  slave,  there  has  been  no  competent  evidence 
of  any  of  those  facts,  and  no  evidence  at  all  but  of 
one  of  them. 

This  man  was  not  rescued  from  the  court.  The 
court  had  adjourned.  The  marshal  had  chosen  to 
make  the  court-room  a  slave  jail.  The  offense  would 
have  been  the  same  in  the  eye  of  the  law,  if  he  had 
been  rescued  from  the  hands  of  the  agent  having  no 
warrant,  in  the  streets,  or  in  a  railroad  car. 

I  have  nothing  more  to  submit  to  the  court  on  the 
subject  of  the  law  applicable  to  this  case.  I  will  now 
call  your  Honor's  attention  to  the  facts  in  proof. 

To  avoid  repetition  and  confusion,  I  will  call  your 
Honor's  attention  to  single  points. 

1.  Mr.  Davis  was  counsel  in  the  case,  and  acted  as 
such.  Mr.  Morton,  who  knew  Shadrach,  and  to  whom 
Shadrach  looked  for  advice,  recommended  Mr.  Davis 
to  him  as  counsel.  Mr.  Riley  testifies  that  Shadrach 
twice  pointed  out  Mr.  Davis  to  him  as  one  of  his  coun 
sel,  when  officially  inquired  of  by  Mr.  Riley.  Mr. 
King  and  Mr.  List,  counselors  of  this  court,  testify 
that  Mr.  Davis  sat  with,  consulted  with,  and  con 
versed  with  the  counsel  who  addressed  the  court, 
made  a  prolonged  and  careful  examination  of  the  pa 
pers,  and  was  the  first  who  raised  the  doubt  of  their 
sufficiency.  Mr.  Sawin,  an  officer,  says  he  acted  as 
counsel.  It  is  proved  that  he  went  into  the  court- 


ARGUMENT  FOR  CHARLES  G.  DAVIS         197 

room  for  the  purpose  of  acting  as  counsel,  and  did 
not  leave  the  room  or  the  bar  at  all  (the  government 
will  admit,  not  for  more  than  a  minute  or  two)  until 
the  last  moment.  What  other  evidence  can  there  be 
of  counsel's  authority?  It  is  seldom  if  ever  in  writing, 
but  is  proved  by  acts  and  recognitions.  After  such 
evidence  of  the  acts  and  recognitions  of  a  hasty  and 
troubled  forenoon,  including  the  testimony  of  two 
of  his  own  officers,  I  was  amazed  at  the  pertinacity  of 
the  prosecuting  officer  in  calling  Mr.  Curtis  to  prove 
that  Mr.  Davis  was  not  counsel.  But  Mr.  Curtis  ad 
mitted  that  he  knew  nothing  of  the  relations  between 
Shadrach  and  Mr.  Davis,  that  there  are  often  coun 
sel  who  do  not  address  the  court,  and  that  Mr.  Davis 
might  have  been  of  such  counsel,  for  aught  he  knew. 
And  most  of  the  work  of  counsel  was  done  after  Mr. 
Curtis  left. 

I  think  your  Honor  will  find  no  difficulty  in  be 
lieving  that  Mr.  Davis  acted  as  counsel  for  Shadrach, 
and  was  in  attendance  for  that  purpose. 

2.  To  connect  Mr.  Davis  with  the  rescue,  the  gov 
ernment  has  found  it  necessary  to  contend  that  he 
left  the  court-room  and  returned,  shortly  before  the 
rescue  took  place.  The  only  witness  to  this  is  Prescott; 
and  how  does  he  stand?  Prescott  was  in  the  entry 
before  the  rescue  took  place,  he  heard  it  debated,  he 
saw  it  through,  he  gave  no  notice  to  any  one,  but  evi 
dently,  from  the  testimony  of  Hanscom,  he  sympa 
thized  with  the  rescuers,  and  expressed  his  sympathy 
in  a  very  unguarded  manner  for  a  man  who  was  pre 
sent,  in  the  midst.  All  that  day  and  the  next,  with 
the  vanity  of  a  youth  who  has  been  the  fortunate 
spectator  of  the  great  event  of  the  day,  a  fire,  a  hang 
ing,  or  a  murder,  he  vaunts  his  connection  and  sym- 


198  RICHARD  HENRY  DANA,  JR. 

pathy  with  the  rescue.  On  the  third  day  come  the 
arrests.  He  finds  the  government  has  learned  that 
he  was  present.  Six  months  in  jail,  and  a  thousand 
dollars  fine,  is  no  trifle  to  a  mechanic's  apprentice.  He 
becomes  alarmed,  and  offers  himself  as  State's  evi 
dence,  and  becomes  a  swift,  a  terrified,  and  a  blinded 
witness  for  the  government.  He  says  he  was  stand 
ing  in  the  entry  by  the  recess  that  leads  to  the  east 
door  and  the  water-closet.  While  there,  he  saw  a 
gentleman  come  along  the  entry  and  go  past  him  into 
the  recess,  and  he  thinks  through  the  east  door  into 
the  court-room.  If  this  was  Mr,  Davis,  he  must  have 
gone  through  that  door,  for  he  was  in  the  room  and 
left  it  again  a  minute  after.  This  gentleman  he  is 
sure  was  Mr.  Davis,  although  he  did  not  then  know 
him  by  name  and  had  only  seen  him  once.  Nor  was 
there  anything  then  to  call  his  attention  to  a  casual 
passer-by. 

Now,  may  it  please  your  Honor,  how  long  and  when 
was  Prescott  at  that  post?  According  to  his  own  tes 
timony,  about  two  minutes  before  the  rescue  began, 
and  as  soon  as  he  saw  the  attempt  was  serious,  he  left 
that  place  for  the  stairs.  Mr.  Davis,  then,  must  have 
entered  the  east  door  one  or  two  minutes  before  he 
went  out  of  the  west  door.  Now,  Mr.  Warren,  the 
deputy  marshal,  testifies  that  he  passed  through  the 
entry  into  this  closet  just  about  two  minutes  before 
the  rescue,  and  remembers  seeing  a  young  white  man 
standing  at  the  corner.  To  avoid  the  effect  of  this 
evidence,  Prescott  is  recalled  and  says  he  remembers 
also  to  have  seen  a  man  come  out  at  the  east  door  and 
go  into  the  closet,  at  this  moment.  But  here  the  wit 
ness  made  a  mistake.  He  thought  that  Mr.  Warren 
went  through  the  east  door,  but  Mr.  Warren  says 


ARGUMENT  FOR  CHARLES  G.  DAVIS          199 

that  he  came  along  the  entry,  and  had  not  been  in  or 
out  of  that  door.  What  then  is  the  predicament  in 
which  Prescott  has  involved  himself?  Three  differ 
ent  men  must  have  gone  into  that  recess  in  the  short 
space  of  two  minutes ;  two  of  them,  at  least,  must  have 
been  in  the  closet  at  the  same  minute;  and  the  east 
door  must  have  been  opened  three  times  upon  a  knock 
from  without. 

Against  this  evident  mistake  or  willful  perversion, 
what  is  the  evidence?  Mr.  Riley  and  Mr.  Warren  both 
say  that  the  east  door  was  fastened  on  the  inside,  with 
strict  orders  not  to  have  it  opened  at  all;  and  so  strict 
were  they,  that  they  themselves  went  and  came  by 
the  west  door.  No  one  can  be  found  who  opened  that 
door  or  saw  it  opened,  or  saw  Mr.  Davis  go  in  or  out 
at  it,  and  it  is  next  the  marshal's  desk,  and  in  plain 
sight  of  every  one.  No  one  could  come  in  at  it,  without 
knocking  and  having  it  opened  from  within.  During 
the  half-hour  before  the  rescue,  there  was  no  one  in 
the  room  but  the  prisoner,  the  officers,  and  the  coun 
sel.  The  doors  were  both  in  plain  sight,  the  east  door 
locked,  and  at  the  west  door  two  officers,  between 
whom  every  person  must  pass.  Both  these  officers 
testify  that  Mr.  Davis  did  not  go  out  or  in  to  their 
knowledge.  Byrnes,  Neale,  and  Sawin,  the  other  of 
ficers,  did  not  see  him  go,  and  think  he  did  not  leave 
the  room.  Mr.  Riley  is  confident  he  did  not  leave  the 
room.  Mr.  Wright  found  Mr.  Davis  in  the  room, 
half  an  hour  before  the  rescue,  and  is  sure  he  did  not 
leave.  Not  a  man  in  the  court-room  saw  him  go  or 
come,  or  believes  that  he  did  so.  If  Prescott's  con 
jecture  is  true,  Mr.  Davis  must  have  gone  out  past 
the  officers  at  the  west  door,  returned  to  the  east 
door,  knocked  and  been  admitted  by  another  officer, 


200  RICHARD  HENRY  DANA,  JR. 

—  besides  the  inconsistencies  about  the  men  in  the 
closet. 

We  might  well  ask,  what  if  this  were  Mr.  Davis? 
What  does  it  prove?  He  spoke  to  no  one,  except  a 
"good  day"  to  one  man,  and  took  no  notice  of  the 
crowd  at  the  door.  But  I  will  not  argue  this  supposi 
tion,  for  it  is  not  true.  It  was  not  Mr.  Davis.  He  did 
not  leave  the  room  until  he  went  out  for  the  last  time. 

Something  has  been  attempted  to  be  made  out  of 
Mr.  Davis's  conversation  with  the  officers  in  the 
room.  A  man  engaged  in  a  plot  for  a  rescue  would 
not  be  likely  to  expose  himself  to  suspicion  by  vio 
lent  remarks  to  officers.  But  take  the  evidence  as  it 
stands.  At  the  request  of  Mr.  List,  he  asked  Sawin, 
whom  he  knew,  if  the  man  next  Shadrach  was  a  South 
ern  man.  This  was  proper.  The  counsel  did  not  wish 
a  man  to  sit  next  the  prisoner,  who  might  converse 
with  him  for  the  purpose  of  getting  admissions  from 
him.  They  feared  he  might  be  an  agent  of  the  claim 
ant.  He  said  privately  to  Mr.  Sawin,  whom  he  had 
known  intimately  for  years,  that  this  was  a  dirty  busi 
ness  he  was  engaged  in.  He  did  not  know  Mr.  Sawin 
to  be  an  officer  of  the  court.  He  knew  him  as  a  city 
constable;  and  supposed  he  had  let  himself  out  by 
the  day  as  a  catcher  of  fugitive  slaves.  I  know  some 
thing  of  the  feelings  of  Southern  gentlemen  as  to  this 
class  of  men.  They  are  necessary  evils.  They  use 
them  as  we  use  spies,  informers,  and  deserters  in  war; 
they  use  them,  but  they  despise  them.  I  remember 
being  in  one  of  the  chief  cities  of  Virginia,  and  passing 
a  large,  handsome  house,  when  my  friend  said  to  me, 
"  There  lives  perhaps  the  richest  man  in  our  town, 
but  he  visits  nowhere,  nobody  notices  him.  He  is 
looked  upon  with  aversion.  He  is  a  dealer  in  slaves! 


ARGUMENT  FOR  CHARLES  G.  DAVIS         201 

He  keeps  a  slave-market,  and  pursues  fugitives!" 
They  look  upon  this  occupation  with  as  much  con 
tempt,  ay,  with  more  contempt  than  we  seem  to 
now;  for  there  is  a  higher  spirit  in  their  aristocracy 
than  in  the  ruling  classes  of  our  Northern  cities  at 
this  moment.  This  was  the  feeling  of  Mr.  Davis  when 
he  spoke  to  Sawin.  This  is  the  feeling  of  every  man  of 
honor.  He  wished  a  man  whom  he  knew  to  be  en 
gaged  in  a  more  respectable  business.  I  have  said  the 
same.  I  saw  a  man  I  knew  in  court  the  other  day, 
letting  himself  by  the  dollar  a  day,  in  slave-catching. 
I  begged  him,  if  he  could  find  any  honest  mode  of  get 
ting  a  living,  to  abandon  it. 

THE  COMMISSIONER.  Did  you  know  him  to  be  en 
gaged  in  his  legal  duties? 

MR.  LUNT.  A  very  improper  remark! 

MR.  DANA.  I  venture  to  suggest  not.  The  remark 
was  with  reference  to  the  future,  and  not  to  the  pre 
sent. 

THE  COMMISSIONER.  I  see  no  distinction  between 
attempting  to  deter  men  from  executing  the  law  and 
assisting  in  violating  it. 

MR.  DANA.  I  am  sorry  I  cannot  see  the  impropri 
ety  of  it.  Perhaps  I  have  not  made  myself  clearly  un 
derstood.  Mr.  Davis  expressed  his  opinion  that  the 
man  had  better  be  in  better  business. 

THE  COMMISSIONER.  It  was  equivalent  to  saying 
to  the  officer  that  the  execution  of  the  law  was  a  mean 
business. 

MR.  DANA.   That  I  propose  to  argue. 

THE  COMMISSIONER.  On  that  point,  the  defendant 
himself  intimated,  in  his  cross-examination,  that  the 
expression  was  not  used  as  an  observation  in  general. 


202  RICHARD  HENRY  DANA,  JR. 

On  being  asked  whether  the  remark  was  not  said  with 
regard  to  his  business,  he  replied,  yes. 

MR.  DANA.  I  did  not  so  understand  it.  He  intended 
to  say  this:  "Mr.  Sawin,  you  and  I  are  old  acquaint 
ances.  You  are  not  obliged  to  do  this  business.  It 
is  mean  business.  Why  do  you  volunteer  in  it?  "  This 
is  what  I  myself  have  said,  and  what  every  high- 
minded  man  must  feel. 

MR.  LTJNT  here  intimated  that  Mr.  Dana  might 
find  himself  changing  places  at  the  bar,  and  be  a  de 
fendant  instead  of  counsel,  if  he  advocated  and  ex 
pressed  such  sentiments. 

MR.  DANA  simply  bowed  to  the  attorney,  and  pro 
ceeded. 

No  citizen  is  bound  to  an  active  execution  of  this 
law,  unless  called  upon  as  one  of  the  posse  comitatus. 
Did  your  Honor  feel  bound  to  join  in  the  pursuit  last 
Saturday,  when  the  mob  passed  you  at  the  corner  of 
Court  Street?  Do  you  feel  bound,  of  a  pleasant  even 
ing,  to  walk  about  in  the  neighborhood  and  see  what 
fugitives  you  can  find  and  dispose  of?  Would  any 
compensation  tempt  you  to  do  it? 

On  the  subject  of  the  conversation  with  Byrnes, 
that  was  considered,  of  course,  very  truculent,  on  the 
government's  evidence.  But  when  explained  by  Mr. 
Minns,  what  is  it?  The  defendant  knows  that  the 
cause  in  which  he  is  engaged,  by  a  strange  revulsion 
of  public  feeling,  is  unpopular.  It  is  unprofitable,  and 
whatever  is  unprofitable  is  unpopular.  It  is  not  gen 
teel,  and  persons  doubtful  of  their  gentility  ridicule  it. 
Now  Mr.  Davis  being  engaged  in  this  unpopular 
cause,  Byrnes  makes  a  remark  which  Mr.  Minns 
thought  was  intended  to  irritate  Mr.  Davis. 


ARGUMENT  FOR  CHARLES  G.  DAVIS         203 

He  did  not  hear  the  first  part,  but  it  ended  with 
"killing  the  negroes."  Mr.  Davis  felt  that  it  was  in 
tended  as  a  taunt  to  him.  He  answered  him:  "Then, 
on  that  principle,  you  ought  to  have  your  throats 
cut."  I  have  no  doubt  it  was  a  logical  conclusion  from 
Mr.  Byrnes's  premises,  and  nothing  more. 

Up  to  this  point,  what  is  the  evidence  against  Mr. 
Davis?  Am  I  not  right  in  saying,  nothing  whatever 
—  nothing  more  than  any  man  would  be  subject  to, 
who  acted  as  counsel? 

The  only  remaining  point  is  his  passing  out  of  the 
door,  and  his  conduct  in  the  entry.  On  this  point 
there  is  but  one  witness  against  him,  and  that  is  Mr. 
Byrnes,  who,  unfortunately,  holds  the  office  of  deputy 
marshal.  I  shall  not  go  into  an  examination  of  the 
evidence  as  to  the  reputation  of  this  man.  Twelve 
good  men,  known  to  us  all,  persons  likely  to  know 
Byrnes's  character,  have  testified  that  it  is  and  has 
for  years  been  bad,  decidedly  bad;  and  it  was  not 
denied  by  this  witness,  that  the  verdict  at  East 
Cambridge  was  rendered  on  the  assumption  of  his 
not  being  worthy  of  belief.  His  own  witnesses  were 
chiefly  casual  acquaintances,  or  the  boon  companions 
of  his  bowling-alley  and  billiard-room,  the  retailers  of 
liquors,  men  who,  like  him,  live  by  violating  the  laws 
by  night,  which  he  lives  by  enforcing  in  the  daytime. 

It  is  clearly  proved  that  there  was  no  suspicion  of  a 
rescue,  either  in  the  court -room  or  in  the  entry,  until 
the  instant  it  took  place.  Prescott  did  not  suspect  it. 
Mr.  Homer,  the  highly  respectable  assistant  clerk  of 
the  Municipal  Court,  who  saw  the  whole  occurrence 
from  the  stairway,  did  not  think  it  would  be  anything 
serious.  Mr.  Warren,  the  deputy  marshal,  passe 
through  the  group  at  the  door  twice,  but  two  or  three 


204  RICHARD  HENRY  DANA,  JR. 

minutes  before  the  rescue,  and  suspected  nothing. 
Five  courts  were  in  session,  and  persons  were  passing 
up  the  stairs  and  through  the  passageway  to  the  last 
moment,  and  suspected  nothing.  The  officers  inside 
suspected  nothing.  Their  defense  against  negligence 
is  the  defense  of  Mr.  Davis.  Mr.  Davis  knew  that 
Mr.  Morton  expected  to  purchase  the  freedom  of 
Shadrach.  He  had  confidence  that  the  documentary 
evidence  was  fatally  defective.  He  was  engaged  to 
attend  the  consultations  on  the  defense,  and  on  the 
Habeas  Corpus,  that  afternoon.  He  saw  that  Mr. 
Curtis  was  not  disposed  to  hurry  matters,  or  to  deny 
the  prisoner  full  opportunities  for  defense.  And  I  will 
do  Mr.  Curtis  the  justice  to  say  that  I  have  no  doubt 
it  was  his  object  to  exhibit  this  law  to  us  in  its  most 
favorable  light;  to  justify  its  makers  as  far  as  possible. 
Mr.  Davis  neither  knew,  nor  suspected,  nor  thought 
of  a  rescue  at  that  door.  Every  witness  says  he  went 
out  of  the  door  in  the  usual  manner,  except  Hutchins, 
and  when  Hutchins  thought  he  should  have  gone  out 
in  full  front,  instead  of  sidewise,  your  Honor  well 
asked  how  otherwise  could  he  have  gone  out,  with  a 
crowd  against  the  door,  and  in  the  passage?  I  see 
that  your  Honor  thinks  nothing  of  that;  although  in 
the  more  jealous  eye  of  the  district  attorney,  it  is  mat 
ter  of  suspicion.  To  minds  so  disposed,  there  is  no 
thing  but  is  proof  of  guilt.  If  Mr.  Davis  had  marched 
out  in  full  front,  it  would  have  been  in  order  to  open 
the  door  wider,  for  the  conspirators  to  rush  in.  Just 
so  in  the  case  of  poor  Shadrach's  coat.  Yesterday  the 
district  attorney  was  certain  that  Mr.  Davis,  or 
some  one,  apprised  him  of  the  intended  rescue,  be 
cause  he  pulled  his  coat  off.  Now,  when  it  is  proved, 
by  the  government's  own  witnesses,  that  Shadrach 


ARGUMENT  FOR  CHARLES  G.  DAVIS         205 

afterwards  put  his  coat  on  again,  I  suppose  his  putting 
it  on  will  be  just  as  good  proof  of  the  same  thing. 

Mr.  Byrnes  thinks  he  recognized  Mr.  Davis's  voice 
in  the  entry,  calling  out,  "Take  him  out,  boys!"  But 
the  same  cry  was  uttered  several  times,  and  Mr. 
Homer  and  Mr.  Hutchins,  who  saw  Mr.  Davis  at  the 
moment,  and  were  outside,  say  it  did  not  come  from 
him,  but  from  the  negroes,  and  Prescott  attributes  it 
to  the  negroes.  Four  men  were  nearer  to  Mr.  Davis 
than  Byrnes  was,  and  all  of  them  exculpate  Mr.  Davis. 
And  Byrnes  is  confessedly  hard  of  hearing,  and  not 
particularly  familiar  with  Mr.  Davis's  voice.  More 
over  his  character  for  truth  and  veracity  is  impeached. 

Mr.  Davis  was  on  or  near  the  platform  when  Mr. 
Homer  saw  him.  Mr.  Adams  met  him  on  the  lower 
floor,  by  the  marshal's  office,  while  the  noise  was  go 
ing  on  upstairs;  talked  with  him  two  or  three  minutes, 
and  walked  round  the  building,  and  saw  the  crowd  go 
up  the  street.  This  proves  that  Mr.  Davis  did  not 
linger  near  the  rescuers;  nor  did  he  absolutely  run 
away,  or  fly,  as  a  man  would  who  desired  to  avoid 
discovery.  On  the  contrary,  he  did  just  as  any  other 
person  would  have  done.  He  stayed  long  enough  to  let 
himself  be  seen  by  several  persons,  but  not  long  enough 
to  be  of  any  aid  to  the  rescuers.  Nothing  can  be 
clearer  of  cause  for  imputation  than  the  conduct  of 
Mr.  Davis  in  the  entry  and  on  the  stairway. 

Such,  please  your  Honor,  is  all  the  evidence  against 
the  defendant.  It  is  reduced  to  an  exclamation  on 
the  staircase,  sworn  to,  not  very  confidently,  by  a  deaf 
man,  who  was  too  far  off  to  hear  well  at  any  rate  of 
hearing,  denied  by  three  officers,  with  good  hearing, 
two  of  whom  were  outside,  while  a  dozen  voices  were 
calling  out  the  same  thing  at  the  same  moment;  the 


206  RICHARD  HENRY  DANA,  JR. 

moment,  too,  one  of  alarm  and  excitement  on  the  part 
of  the  officers.  If  such  evidence  is  sufficient,  who  can 
be  safe?  Who  would  dare  to  act  as  counsel  in  any  case 
of  public  excitement,  with  a  suspicious  and  angry 
government  watching  every  motion,  served  by  officers 
of  broken-down  reputations? 

Please  your  Honor,  I  have  done  with  the  testimony. 
On  what  principles  of  proof  is  the  judgment  to  be 
made  up? 

The  Constitution  requires  that  no  person  shall  be 
arrested  without  a  warrant  supported  by  oath.  The 
Act  of  1789  requires  these  proceedings  to  be  conformed 
to  proceedings  in  the  state  courts.  In  Massachusetts 
it  has  always  been  required  that  the  complainant 
shall  be  first  examined  on  his  oath.  In  this  case  there 
has  been  no  examination  under  oath.  Mr.  George 
Lunt  has  sworn,  "so  help  me  God,"  that  Charles 
Gideon  Davis,  a  counselor  of  this  court,  has  aided 
in  rescuing  the  prisoner.  Yet,  so  help  him  God!  he 
knew  nothing  about  the  facts.  He  has  made  oath  to 
the  form  of  the  statute,  and  no  more. 

MR.  LUNT  here  intervened  and  said  it  was  the  cus 
tom  for  the  district  attorney  to  swear  to  complaints 
on  hearsay  evidence. 

MR.  DANA.  But  this  is  not  stated  as  hearsay.  It 
is  sworn  to  as  a  fact.  Charles  G.  Davis  "did  rescue," 
and  the  above  named  George  Lunt  made  oath  to  the 
truth  of  the  facts.  As  a  question  of  conscience,  I  leave 
it  with  that  officer  to  settle  with  himself.  As  a  matter 
of  law,  as  a  matter  of  vital  importance  to  every  citi 
zen,  as  a  great  question  of  constitutional  law,  I 
earnestly  protest  against  the  issuing  of  warrants  on 


ARGUMENT  FOR  CHARLES  G.  DAVIS         207 

the  mere  formal  oaths  of  official  persons,  represent 
ing  a  party  in  the  proceedings,  and  utterly  ignorant 
of  the  facts  they  swear  to.  If  it  be  a  custom,  it  is 
more  honored  in  the  breach  than  in  the  observance. 
But  I  deny  that  it  is  the  custom.  Complaints  are 
sworn  to  by  persons  knowing  the  facts  always  in  the 
state  courts,  and  in  my  experience  in  the  federal 
courts.  If  the  prosecuting  officer  is  obliged  to  swear 
to  them,  for  want  of  other  witnesses,  he  only  swears 
to  his  information  and  belief. 

In  closing  my  prolonged  remarks,  let  me  recapitu 
late  our  case.  Mr.  Davis  is  not  the  man  to  urge  others 
to  acts  he  dares  not  commit  himself.  He  believes  this 
dreadful  statute  unconstitutional,  a  violation  of  our 
moral  sense,  a  great  breach  upon  the  safeguards  of 
freedom  everywhere.  Yet  he  will  oppose  it  legally, 
by  speech,  by  the  pen,  and  in  court.  He  .will  not  yield 
to  it  any  voluntary  obedience,  but  he  will  not  use 
force,  or  counsel  citizens  to  use  force  to  set  aside  the 
laws.  He  rejoices  that  Shadrach  is  free.  Every  right- 
minded  man  rejoices  that  he  is  free.  Sober  second 
thought  teaches  him  and  all  of  us  that  violent  coun 
sels  are  weak  counsels.  Better  had  it  been  for  the 
cause  of  freedom,  if,  when  the  marshal  called  out  to 
shoot  the  prisoner,  some  armed  minister  of  the  law 
had  shot  dead  the  unarmed,  unoffending  man !  Better 
had  it  been  for  him,  and  the  cause  of  those  like  him, 
if  John  H.  Biley,  instead  of  flying  to  the  window,  had 
plunged  that  sword  to  the  hilt  in  the  heart  of  the  cap 
tive!  Better  if  this  temple  of  justice,  which  has  al 
ready  been  turned  into  a  slave- jail  and  a  slave-mar 
ket,  had  also  been  made  the  shambles  and  the  grave ! 

While  we  uphold  the  public  peace  and  the  dignity 
of  all  laws,  let  us  regard  with  tenderness  and  consid- 


208  RICHARD  HENRY  DANA,  JR. 

eration  that  poor  class  of  oppressed  men,  our  negro 
population,  on  whom  the  statute  falls  with  the  ter 
rors  and  blackness  of  night.  When  one  of  their  num 
ber,  by  his  industry  and  abilities,  has  raised  himself 
to  the  dignity  of  a  place  in  this  bar,  it  was  with  morti 
fication  I  heard  him  insulted,  yesterday,  on  the  stand, 
by  an  officer  of  this  court,  who  pointed  him  out,  in 
giving  his  evidence,  as  "the  little  darky  lawyer." 
While  I  rejoiced  at  the  rebuke  administered  to  that 
officer  from  the  bench,  it  was  with  deep  regret  that 
I  saw  the  representative  of  the  government  lead  off 
the  laugh  of  the  audience  against  him. 

MR.  LUNT.  This  is  false. 

MR.  DANA.  Do  you  deny  you  did  so?  It  was  seen 
and  noticed  by  us  all.  I  spoke  to  you  at  the  time. 

MR.  LUNT.  I  only  smiled.  I  cannot  always  con 
trol  my  muscles. 

MR.  DANA.  I  am  sorry  you  could  not  control  them 
on  this  occasion.  It  led  off  and  encouraged  others, 
who  take  their  cue  from  persons  in  high  stations. 

The  doings  of  these  last  few  days  are  now  part  of 
history.  If  there  has  been  a  hasty  and  a  needless  arrest 
of  a  respectable  gentleman;  if  counsel  have  been  in 
timidated,  or  witnesses  threatened;  if  liberty  of  speech 
and  action  have  been  periled;  if  the  dignity  and  duty 
of  office  have  been  yielded  to  the  unreasonable  de 
mands  of  political  agents,  and  the  commands  of  a  mis 
informed  executive,  —  the  inquest  of  public  opinion 
is  to  sit  upon  the  whole  transaction,  and  it  will  be  held 
up  to  the  world.  Proximus  ardet  Ucalegon!  There  are 
revolutions  in  the  wheel  of  fortune.  There  are  tides  in 
the  affairs  of  men. 


ARGUMENT  FOR  CHARLES  G.  DAVIS          209 

Let  us  hope  that  your  Honor  will  be  able  to  set  this 
occurrence  in  its  true  light:  —  a  sudden,  unexpected, 
unpremeditated  action  of  a  group  of  excited  men,  and 
successful  because  unexpected.  But  a  sworn  coun 
selor  of  this  court,  even  in  the  excitement  of  the  res 
cue  of  a  slave  to  his  freedom,  by  those  of  his  own  flesh 
and  bone,  did  not  forget  the  duty  he  owed  personally 
to  the  court  and  the  law. 


X 

AGAINST  THE  RENDITION  OF  ANTHONY 
BURNS  TO  SLAVERY 

MAY  31,  1854. 

[An  interesting  account  of  Mr.  Dana's  services  in  behalf  of 
fugitive  slaves  and  rescuers  is  given  in  the  Biography.1 

The  speech  took  four  hours  and  Mr.  Dana  says  in  his  journal: 
"My  whole  brief  was  on  the  sides  of  a  piece  of  small  note-paper 
and  consequently  I  was  obliged  to  write  from  recollection." 

I  may  repeat  here  that  Mr.  Dana  refused  all  pay  for  his  ser 
vices  to  fugitive  slaves.2] 

I  CONGRATULATE  you,  sir,  that  your  labors,  so  anx 
ious  and  painful,  are  drawing  to  a  close.  I  congratu 
late  the  Commonwealth  of  Massachusetts,  that  at 
length,  in  due  time,  by  leave  of  the  marshal  of  the 
United  States  and  the  district  attorney  of  the  United 
States,  first  had  and  obtained  therefor,  her  courts  may 
be  reopened,  and  her  judges,  suitors  and  witnesses 
may  pass  and  repass  without  being  obliged  to  satisfy 
hirelings  of  the  United  States  marshal  and  bayo 
neted  foreigners,  clothed  in  the  uniform  of  our  army 
and  navy,  that  they  have  a  right  to  be  there.  I  con 
gratulate  the  city  of  Boston,  that  her  peace  here  is  no 
longer  to  be  in  danger.  Yet  I  cannot  but  admit  that 
while  her  peace  here  is  in  some  danger,  the  peace  of  all 
other  parts  of  the  city  has  never  been  so  safe  as  while 
the  marshal  has  had  posse  of  specials  in  this  court- 

1  Vol.  i,  pp.  178-201,  and  for  Anthony  Burns  case,  vol.  i,  pp.  262-295. 

2  Biography,  vol.  i,  pp.  291-294. 


RENDITION  OF  ANTHONY  BURNS 

house.  Why,  sir,  people  have  not  felt  it  necessary  to 
lock  their  doors  at  night,  the  brothels  are  tenanted 
only  by  women,  fighting  dogs  and  racing  horses  have 
been  unemployed,  and  Ann  Street  and  its  alleys  and 
cellars  show  signs  of  a  coming  millennium. 

I  congratulate,  too,  the  government  of  the  United 
States,  that  its  legal  representative  can  return  to  his 
appropriate  duties,  and  that  his  sedulous  presence  will 
no  longer  be  needed  here  in  a  private  civil  suit,  for  the 
purpose  of  intimidation,  a  purpose  which  his  effort  the 
day  before  yesterday  showed  every  desire  to  effect, 
which,  although  it  did  not  influence  this  court  in  the 
least,  I  deeply  regret  your  Honor  did  not  put  down  at 
once,  and  bring  to  bear  upon  him  the  judicial  power 
of  this  tribunal.  I  congratulate  the  marshal  of  the 
United  States,  that  the  ordinary  respectability  of  his 
character  is  no  longer  to  be  in  danger  from  the  charac 
ter  of  the  associates  he  is  obliged  to  call  about  him.  I 
congratulate  the  officers  of  the  army  and  navy,  that 
they  can  be  relieved  from  this  service,  which  as  gentle 
men  and  soldiers  surely  they  despise,  and  can  draw 
off  their  non-commissioned  officers  and  privates,  both 
drunk  and  sober,  from  this  fortified  slave-pen,  to  the 
custody  of  the  forts  and  fleets  of  our  country,  which 
have  been  left  in  peril,  that  this  great  republic  might 
add  to  its  glories  the  trophies  of  one  more  captured 
slave. 

I  offer  these  congratulations  in  the  belief  that  the 
decision  of  your  Honor  will  restore  to  freedom  this 
man,  the  prisoner  at  the  bar,  whom  fraud  and  violence 
found  a  week  ago  a  free  man  on  the  soil  of  Massachu 
setts.  But  rather  than  that  your  decision  should  con 
sign  him  to  perpetual  bondage,  I  would  say  —  let  this 
session  never  break  up f  Let  us  sit  here  to  the  end  of 


212  RICHARD  HENRY  DANA,  JR. 

that  man's  life,  or  to  the  end  of  ours.  But,  assured  that 
your  Honor  will  carry  through  this  trial  the  presump 
tion  which  you  recognized  in  the  outset,  that  this  man 
is  free  until  he  is  proved  a  slave,  we  look  with  confi 
dence  to  a  better  termination. 

Sir  Matthew  Hale  said  it  was  better  that  nine 
guilty  men  should  escape  than  that  one  innocent  man 
should  suffer.  This  maxim  has  been  approved  by  all 
jurists  and  statesmen  from  that  day  to  this.  It  was  ap 
plied  to  a  case  of  murder,  where  one  man's  life  was  on 
one  side  and  the  interest  of  an  entire  community  on 
the  other.  How  much  more  should  it  be  applied  to  a 
case  like  this,  where  on  the  one  side  is  something 
dearer  than  life,  and  on  the  other  no  public  interest 
whatever,  but  only  the  value  of  a  few  hundred  pieces 
of  silver,  which  the  claimant  himself,  when  they  were 
offered  to  him,  refused  to  receive.  It  is  not  by  rhetoric, 
but  in  human  nature,  by  the  judgment  of  mankind, 
that  liberty  is  dearer  than  life.  Men  of  honor  set  their 
lives  at  a  pin's  fee  on  point  of  etiquette.  Men  peril 
it  for  pleasure,  for  glory,  for  gain,  for  curiosity,  and 
throw  it  away  to  escape  poverty,  disgrace,  or  despair. 
Men  have  sought  for  death,  and  digged  for  it  as  for  hid 
treasure.  But  when  do  men  seek  for  slavery,  for  cap 
tivity?  I  have  never  been  one  of  those  who  think  hu 
man  life  the  highest  thing.  I  believe  there  are  things 
more  sacred  than  life.  Therefore  I  believe  men  may 
sacrifice  their  own  lives,  and  the  community,  some 
times  the  single  man,  may  take  the  lives  of  others. 
Such  is  the  estimation  in  which  it  is  held  by  all  man 
kind.  No!  there  are  some  in  my  sight  now  who  care 
nothing  for  freedom,  whose  sympathies  all  go  for  des 
potism;  but  thank  God  they  are  few  and  growing 
less.  Such  is  the  estimate  of  life  compared  with  free- 


RENDITION  OF  ANTHONY  BURNS  213 

dom,  which  the  common  opinion  of  mankind  and  the 
common  experience  of  mankind  has  placed  upon  it. 
Here  is  a  question  of  a  few  despised  pieces  of  silver  on 
the  one  hand,  and  on  the  other  perpetual  bondage  of 
a  man,  from  early  manhood  to  an  early  or  late  grave, 
and  the  bondage  of  the  fruit  of  his  body  forever.  We 
have  a  right,  then,  to  expect  from  your  Honor  a  strict 
adherence  to  the  rule  that  this  man  is  free  until  he  is 
proved  a  slave  beyond  every  reasonable  doubt,  every 
intelligent  abiding  misgiving  proved  by  evidence  of 
the  strictest  character,  after  a  rigid  compliance  with 
every  form  of  law  which  statute,  usage,  precedent  has 
thrown  about  the  accused  as  a  protection. 

We  have  before  us  a  free  man.  Colonel  Suttle  says 
there  was  a  man  in  Virginia  named  Anthony  Burns; 
that  that  man  is  a  slave  by  the  law  of  Virginia;  that  he 
is  his  slave,  owing  service  and  labor  to  him;  that  he 
escaped  from  Virginia  into  this  State,  and  that  the 
prisoner  at  the  bar  is  that  Anthony  Burns.  He  says  all 
this.  Let  him  prove  it  all!  Let  him  fail  in  one  point, 
let  him  fall  short  the  width  of  a  spider's  thread,  in  the 
proof  of  all  his  horrid  category,  and  the  man  goes  free. 

Granted  that  all  he  says  about  his  slave  in  Virginia 
be  true  —  is  this  the  man? 

On  the  point  of  personal  identity,  the  most  fre 
quent,  the  most  extraordinary,  the  most  notorious, 
and  sometimes  the  most  fatal  mistakes  have  been 
made  in  all  ages.  One  of  the  earliest  and  most  pa 
thetic  narratives  of  Holy  Writ  is  that  of  the  patriarch, 
cautious,  anxious,  crying  again  and  again,  "Art  thou 
my  very  son  Esau?  "  and,  by  a  fatal  error,  reversing  a 
birthright,  with  consequences  to  be  felt  to  the  end  of 
time.  You  know,  sir,  —  they  are  matters  of  common 
knowledge,  —  that  a  mother  has  taken  to  her  bosom 


214  RICHARD  HENRY  DANA,  JR. 

a  stranger  for  an  only  son,  a  few  years  absent  at  sea. 
Whole  families  and  whole  villages  have  been  deceived 
and  perplexed  in  the  form  and  face  of  one  they  have 
known  from  a  child.  You  have  found  it  difficult  to 
recognize  your  own  classmates,  at  the  age  of  three  or 
four  and  twenty,  who  left  you  in  their  sophomore  year. 
Brothers  have  mistaken  brothers.  We  have  the  Com 
edy  of  Errors.  Let  us  have  no  Tragedy  of  Errors,  here ! 
The  first  case  under  this  statute,  the  case  of  Gibson, 
in  Philadelphia,  was  a  mistake.  He  was  sworn  to,  and 
the  commissioner  was  perfectly  satisfied,  and  sent  him 
to  Maryland.  Against  the  will  of  the  claimant,  from 
the  humanity  of  the  marshal,  who  had  his  doubts, 
and  would  not  leave  the  man  at  the  state  line,  but 
went  with  him  to  the  threshold  of  the  door  of  the  mas 
ter's  house,  the  mistake  was  discovered  before  it  was 
too  late.  In  the  late  case  of  Freeman,  in  Indiana,  the 
claimant  himself  was  present,  and  the  testimony  was 
entirely  satisfactory,  and  he  was  remanded;  but  it 
turned  out  a  mistake,  and  he  has  recovered,  I  am  told, 
two  thousand  dollars  in  damages.  These  are  the  mis 
takes  discovered.  But  who  can  tell  over  to  you  the 
undiscovered  mistakes?  the  numbers  who  have  been 
hurried  off,  by  some  accidental  resemblance  of  scars  or 
cuts,  or  height,  and  fallen  as  drops,  undistinguishable, 
into  the  black  ocean  of  slavery? 

Make  a  mistake  here,  and  it  will  probably  be  ir 
remediable.  The  man  they  seek  has  never  lived  under 
Colonel  Suttle's  roof  since  he  was  a  boy.  He  has  al 
ways  been  leased  out.  The  man  you  send  away  would 
be  sold.  He  would  never  see  the  light  of  a  Virginia 
sun.  He  would  be  sold  at  the  first  block,  to  perish 
after  his  few  years  of  unwonted  service,  on  the  cotton- 
fields  or  sugar-fields  of  Louisiana  and  Arkansas.  Let 


RENDITION  OF  ANTHONY  BURNS  215 

us  have,  then,  no  chance  for  a  mistake,  no  doubt,  no 
misgiving! 

What,  then,  is  the  evidence?  They  have  but  one 
witness,  and  one  piece  of  paper.  The  paper  cannot 
identify,  and  the  proof  of  identity  hangs  on  the  testi 
mony  of  one  man.  It  all  hangs  by  one  thread.  That 
man  is  Mr.  Brent.  Of  him,  neither  you  nor  I,  sir,  know 
anything.  He  tells  us  he  is  engaged  in  the  grocery 
business,  and  lives  in  Richmond,  Virginia.  Beyond 
this,  we  know  nothing,  good  or  bad.  He  knew  Burns 
when  a  boy,  running  about  at  Colonel  Suttle's,  too 
young  to  labor.  He  next  hired  him  himself,  in  1846 
and  1847.  This  was  seven  years  ago.  He  says  Burns 
is  now  twenty-three  or  twenty-four  years  of  age.  He 
was  then  sixteen  or  seventeen  years  old;  he  is  now  a 
matured  man. 

Since  that  time  he  has  leased  him,  as  agent  for  Colo 
nel  Suttle,  but  does  not  seem  to  have  been  brought 
in  close  contact  with  him,  or  to  have  done  more  than 
occasionally  meet  him  in  the  streets.  The  record  they 
bring  here  describes  only  a  dark  complexioned  man. 
The  prisoner  at  the  bar  is  a  full-blooded  negro.  Dark 
complexions  are  not  uncommon  here,  and  more  com 
mon  in  Virginia.  The  record  does  not  show  to  which 
of  the  great  primal  divisions  of  the  human  race  the 
fugitive  belongs.  It  might  as  well  have  omitted  the 
sex  of  the  fugitive.  It  says  he  has  a  scar  on  one  of  his 
cheeks.  The  prisoner  has,  on  his  right  cheek,  a  brand 
or  burn  nearly  as  wide  as  the  palm  of  a  man's  hand. 
It  says  he  has  a  scar  on  his  right  hand.  A  scar!  The 
prisoner's  right  hand  is  broken,  and  a  bone  stands  out 
from  the  back  of  it,  a  hump  an  inch  high,  and  it  hangs 
almost  useless  from  the  wrist,  with  a  huge  scar  or  gash 
covering  half  its  surface.  Now,  sir,  this  broken  hand, 


216  RICHARD  HENRY  DANA,  JR. 

this  hump  of  bone  in  the  midst,  is  the  most  noticeable 
thing  possible  in  the  identifying  of  a  slave.  His  right 
hand  is  the  chief  property  his  master  has  in  him.  It  is 
the  chief  point  of  observation  and  recollection.  If  that 
hand  has  lost  its  cunning  or  its  power,  no  man  hears  it 
so  soon  and  remembers  it  so  well  as  the  master.  Now, 
it  is  extraordinary,  sir,  that  neither  the  record  nor  Mr. 
Brent  say  anything  about  the  most  noticeable  thing 
in  the  man.   Nowhere  in  Mr.  Brent's  testimony  does 
he  allude  to  it,  but  only  speaks  of  a  cut.  The  truth  is, 
please  your  Honor,  one  of  two  things  is  certain  here. 
If  Mr.  Brent  does  know  intimately  Anthony  Burns, 
of  Richmond,  and  has  described  him  as  fully  as  he  can, 
the  prisoner  is  not  the  man.  Anthony  Burns  was  miss 
ing,  and  Mr.  Brent  hurried  down  to  Alexandria  to  tell 
Colonel  Suttle.  The  record  is  made  up,  which  is  prob 
ably  still  only  Mr.  Brent  on  paper.  Mr.  Brent  conies 
here  with  Colonel  Suttle,  as  his  friend.  Emissaries  are 
sent  out  with  the  description  in  their  hand,  and  they 
find  a  negro,  with  a  huge  brand  on  his  cheek  and  a 
broken  and  cut  hand,  and  that  is  near  enough  for 
catchers,  paid  by  the  job,  to  a  "dark  complexioned 
man,"  with  "a  scar  on  the  cheek  and  on  the  right 
hand."   Mr.  Brent  knows,  and  does  not  swear  other 
wise,  that  the  Anthony  Burns  he  means  had  only  a 
scar  or  cut,  and  he  distinctly  said  "no  other  mark." 
But  still  he  swears  to  the  man.  Identification  is  mat 
ter  of  opinion.   Opinion  is  influenced  by  the  temper, 
and  motive,  and  frame  of  mind.    Remember,  sir,  the 
state  of  political  excitement  at  this  moment.  Remem 
ber  the  state  of  feeling  between  North  and  South;  the 
contest  between  the  slave  power  and  the  free  power. 
Remember  that  this  case  is  made  a  state  issue  by  Vir 
ginia,  a  national  question  by  the  executive.   Reflect 


RENDITION  OF  ANTHONY  BURNS  217 

that  every  reading  man  in  Virginia,  with  all  the  pride 
of  the  Old  Dominion  aroused  in  him,  is  turning  his 
eyes  to  the  result  of  this  issue.  No  man  could  be  more 
liable  to  bias  than  a  Virginian,  testifying  in  Massachu 
setts,  at  this  moment,  on  such  an  issue,  with  every 
powerful  and  controlling  motive  on  earth  enlisted  for 
success. 

Take  the  other  supposition,  which  may  be  the  true 
one,  that  Mr.  Brent  does  not  know  Anthony  Burns 
particularly  well.  He  goes  down  to  Alexandria  to  tell 
Colonel  Suttle  that  he  has  escaped.  The  record  is 
made  up  there,  as  best  they  can.  Mr.  Brent  did  not 
go  there  as  a  witness  to  identify,  and  does  the  best  he 
can.  He  does  not  recollect  whether  he  is  a  negro  or 
mulatto,  or  of  what  shade,  so  he  calls  him  "dark  com- 
plexioned,"  and  he  can  speak  only  of  a  scar,  he  does 
not  know  on  which  cheek,  and  of  a  scar  on  the  hand. 
Beyond  this,  he  is  uncertain.  If  this  is  so,  your  Honor 
can  have  no  satisfying  description  of  Anthony  Burns, 
the  slave  of  Colonel  Suttle,  if  such  a  person  there  be. 

But  there  is,  fortunately,  one  fact,  of  which  Mr. 
Brent  is  sure.  He  knows  that  he  saw  this  Anthony 
Burns  in  Richmond,  Virginia,  on  the  20th  day  of 
March  last,  and  that  he  disappeared  from  there  on  the 
24th.  To  this  fact,  he  testifies  unequivocally.  After 
all  the  evidence  is  put  in  on  our  side  to  show  that  the 
prisoner  was  in  Boston  on  the  1st  and  5th  of  March, 
he  does  not  go  back  to  the  stand  to  correct  an  error,  or 
to  say  that  he  may  have  been  mistaken,  or  that  he 
meant  only  to  say  that  it  was  about  the  20th  and  24th. 
He  persists  in  his  positive  testimony,  and  I  have  no 
doubt  he  is  right  and  honest  in  doing  so.  He  did  see 
Anthony  Burns  in  Richmond,  Virginia,  on  the  20th  day 
of  March,  and  Anthony  Burns  was  first  missing  from 


218  RICHARD  HENRY  DANA,  JR. 

there  on  the  24th.  But  the  prisoner  was  in  Boston, 
earning  an  honest  livelihood  by  the  work  of  his  hands, 
through  the  entire  month  of  March,  from  the  first 
day  forward.  Of  this  your  Honor  cannot,  on  the 
proofs,  entertain  a  reasonable  doubt. 

William  Jones,  a  colored  man  well  known  in  this 
city,  who  works  for  the  city,  and  for  the  Mattapan 
Company,  and  for  others,  and  entirely  unimpeached, 
testifies  that  on  the  first  day  of  March  he  met  the  pris 
oner  in  Washington  Street.  He  knows  the  man.  He 
tells  you  of  all  the  places  he  went  to  with  him  to  find 
work  for  him  to  do.  He  received  him  into  his  house  as 
a  boarder  on  that  day.  On  the  5th  day  of  March  they 
began  working  together  at  the  Mattapan  Works,  in 
South  Boston,  cleaning  windows  and  whitewashing,  and 
worked  for  five  or  six  days.  Then,  on  the  18th,  they 
worked  at  the  City  Building.  Then  Burns  left  him  for 
another  employ.  Jones  cannot  be  mistaken  as  to  the 
identity.  The  only  question  would  be  as  to  the  truth 
of  his  story.  It  is  a  truth  or  it  is  a  pure  and  sheer  fabri 
cation.  I  saw  at  once,  and  every  one  must  have  felt, 
that  the  story  so  full  of  details,  with  such  minuteness 
of  dates  and  names  and  places,  must  either  stand  im 
pregnable  or  be  shattered  to  pieces.  The  fullest  test 
had  been  tried.  The  other  side  has  had  a  day  in  which 
to  follow  up  the  points  of  Jones's  diary,  and  discover 
his  errors  and  falsehoods.  But  he  is  corroborated  in 
every  point. 

He  came  into  the  room  and  recognized  him  at  once, 
and  the  prisoner  recognized  the  witness.  His  testi 
mony  corroborates  Jones  in  another  particular.  Jones 
says  he  remembers  the  dates  from  the  fact  of  a  dispute 
between  him  and  the  prisoner,  which  led  him  to  ask 
Mr.  Russell  to  enter  the  dates  of  the  prisoner's  coming 


RENDITION  OF  ANTHONY  BURNS  219 

to  his  house  in  his  pocket-book,  as  Jones  himself  does 
not  write.  This  pocket-book  was  produced  by  Jones, 
and  Mr.  Russell,  who  made  the  entries,  was  sworn  by 
us  and  has  been  here. 

Mr.  Whittemore  is  a  member  of  the  City  Council, 
and  was  one  of  the  Directors  of  the  Mattapan  Com 
pany.  He  made  a  journey  to  the  West,  from  which  he 
returned  on  the  8th  day  of  March.  On  that  day  or  the 
next,  he  went  to  the  works,  where  his  counting-room 
is.  The  prisoner  and  Jones  were  cleaning  the  windows 
of  the  counting-room.  He  noticed  the  peculiar  condi 
tion  of  his  hand,  and  the  mark  on  his  cheek.  He  is  sure 
of  the  man  and  of  the  date.  He  heard  at  the  armory 
of  the  Pulaski  Guards,  of  which  he  is  lieutenant,  of 
Jones's  testimony,  and  said  to  himself  and  others,  "I 
shall  know  that  man"  and  came  here  to  see.  As  soon 
as  he  saw  him,  he  knew  him. 

Now,  sir,  Mr.  Whittemore,  in  answer  to  a  question 
from  me,  whether  he  was  under  the  odium  of  being 
either  a  Free  Soiler  or  an  Abolitionist,  said  that  he  was 
a  Hunker  Whig.  The  counsel  thought  this  an  irrele 
vant  question.  I  told  him  I  thought  it  vital.  Not  that 
the  political  relations  of  Mr.  Whittemore  could  affect 
your  Honor's  mind,  but  that  it  shows  he  has  no  bias  on 
our  side.  Moreover,  I  am  anxious  not  only  that  your 
Honor  should  believe  our  evidence,  but  that  the  pub 
lic  should  justify  you  in  so  doing.  And  there  is  no  fear 
but  that  the  press  and  the  public  mind  will  be  per 
fectly  at  ease  if  it  knows  that  your  Honor's  judgment 
is  founded  even  in  part,  in  a  fugitive-slave  case,  in 
favor  of  the  fugitive,  on  the  testimony  of  a  man  who 
has  such  a  status  illcesce  existimationis,  as  a  Hunker 
Whig,  who  is  eke  a  train-band  captain  in  a  corps 
under  arms! 


220  RICHARD  HENRY  DANA,  JR. 

Jones  says  that  they  went  to  work  every  day  at 
seven  o'clock.  Mr.  Culver,  the  foreman,  and  Mr.  Put 
nam,  a  machinist,  and  Mr.  Gilman,  the  teamster,  of  the 
works,  say  that  the  hour  of  work  was  changed  to  half 
after  six  on  the  first  of  April.  They  also  are  quite  sure, 
from  the  course  of  the  work  and  their  general  recollec 
tion,  that  it  was  done  early  in  March.  Mr.  Gilman 
has  an  additional  recollection  that  it  was  a  few  days 
after  pay  day,  which  was  March  1.  Mr.  Putnam  has 
a  memorandum  which  shows  that  he  began  his  own 
work  there  on  the  3d  or  4th  day  of  March,  and  he 
says  Jones  began  cleaning  the  windows  a  few  days 
after. 

Then  Mr.  Brown,  one  of  the  city  police,  now  on 
duty,  testifies  that  on  entering  the  court-room,  he  re 
cognized  the  prisoner  at  once.  He  has  no  doubt  of  him. 
He  first  saw  him  at  the  Mattapan  Works  cleaning  win 
dows  with  Jones.  He  himself  left  off  his  work  there  on 
the  20th  of  March,  as  his  memorandum  and  recollection 
show.  About  ten  days  before  he  left  off  he  changed  his 
work  to  a  new  building  in  which  there  were  no  win 
dows.  The  windows  were  cleaned  in  the  old  building 
and  of  course  before  the  10th  of  March.  His  attention 
was  called  to  the  man  at  the  time.  He  spoke  to  him, 
and  asked  him  to  wash  a  certain  window. 

This  is  the  testimony  as  to  the  Mattapan  Works. 
Is  it  not  conclusive?  It  is  clear  that  the  work  was  done 
there  by  Jones  and  a  colored  man  from  the  5th  to  the 
10th  of  March.  Jones  worked  there  at  no  other  time. 
This  man  was  the  prisoner.  On  a  question  of  identity, 
numbers  are  everything.  One  man  may  mistake,  by 
accident,  by  design  or  bias.  His  sight  may  be  poor, 
his  observation  imperfect,  his  opportunities  slight,  his 
recollection  of  faces  not  vivid.  But  if  six  or  eight  men 


RENDITION  OF  ANTHONY  BURNS 

agree  on  identity,  the  evidence  has  more  than  six  or 
eight  times  the  force  of  one  man's  opinion.  Each  man 
has  his  own  mode  and  means  and  habits  of  observa 
tion  and  recollection.  One  observes  one  thing,  and  an 
other  another  thing.  One  makes  this  combination  and 
association,  and  another  that.  One  sees  him  in  one 
light  or  expression,  or  position,  or  action,  and  another 
in  another.  One  remembers  a  look,  another  a  tone, 
another  the  gait,  another  the  gesture.  Now  if  a  con 
siderable  number  of  these  independent  observers  com 
bine  upon  the  same  man,  the  chances  of  mistake  are 
lessened  to  an  indefinite  degree.  What  other  man 
could  answer  so  many  conditions,  presented  in  so  vari 
ous  ways  ? 

On  the  point  of  the  time  and  place,  too,  each  of 
those  witnesses  is  an  independent  observer.  These 
are  not  links  in  one  chain,  each  depending  on  an 
other.  They  are  separate  rays,  from  separate  sources, 
settling  on  one  point. 

Here  we  have  the  testimony  of  Mr.  Favor,  whom  I 
know  you  have  noticed  as  a  respectable  man,  who  re 
members  Jones  bringing  the  prisoner  to  his  shop,  in 
Lincoln  Street,  to  find  work,  very  early  in  March ;  and 
Stephen  Maddox,  a  tailor,  says  that  Jones  brought  the 
prisoner  to  his  shop  to  find  work.  He  remembers  tell 
ing  him  that  he  should  have  no  work  for  him  for  two 
months,  as  his  outdoor  work,  cleaning,  etc.,  did  not 
begin  so  as  to  require  help  before  the  first  of  May. 
This  is  the  natural  observation,  and  it  is  as  natural  he 
should  remember  it.  A  poor  man  was  applying  for 
work.  He  was  obliged  to  put  him  off,  and,  to  show  his 
sincerity,  he  explained  to  him  the  course  of  his  work. 
He  was  obliged  to  sentence  him  to  disappointment  and 
delay  for  two  months.  He  remembered  it.  It  would 


222  RICHARD  HENRY  DANA,  JR. 

be  remembered  by  a  kindly  man,  under  such  circum 
stances. 

The  attempt  at  contradiction  as  to  the  City  Build 
ings  fails.  Mr.  Gould  confirms  Jones's  account  that 
he  worked  there  on  the  18th  or  17th  of  March.  He 
does  not  recollect  the  prisoner  being  with  him;  but  he 
admits  that  he  was  there  only  twice  a  day,  and  Jones 
said  that  the  prisoner  was  there  only  an  hour  or  so,  to 
help  him  a  little  without  pay. 

Mr.  Brent  puts  his  case  resolutely  and  unequivo 
cally  on  the  ground  that  the  man  he  means  was  in 
Richmond  up  to  the  20th.  We  have  proved  that  the 
prisoner  was  here  on  the  1st  and  5th  and  10th  and 
18th.  This  is  inconsistent  with  the  claimant's  case. 
This  witness  does  not  pretend  a  mistake  or  doubt. 
They  cannot  pretend  one  in  argument,  because  he  has 
been  in  court  all  the  while,  and  is  not  recalled. 

If  we  had  the  burden  of  proof,  should  we  not  have 
met  it?  How  much  more  then  are  we  entitled  to  pre 
vail,  where  we  have  only  to  shake  the  claimant's  case 
by  showing  that  it  is  left  in  reasonable  doubt? 

Whatever  confidence  I  may  have  in  this  position, 
I  must  not  peril  the  cause  of  my  client  by  any  over 
weening  confidence  in  my  own  judgment.  I  must 
therefore  call  your  Honor's  attention  to  the  other 
points  of  our  defense. 

Assume  now,  for  the  purpose  of  further  inquiry, 
that  all  our  testimony  is  thrown  out,  and  let  the  case 
rest  on  their  evidence  alone.  It  is  incumbent  on  them 
to  show  that  the  prisoner  owes  service  and  labor  to 
Colonel  Suttle,  by  the  laws  of  Virginia,  and  that  he 
escaped  from  that  State  into  Massachusetts. 

Does  he  owe  service  and  labor  to  Colonel  Suttle? 

The  claimant,  perhaps,  will  say  that  the  record  is 


RENDITION  OF  ANTHONY  BURNS  223 

conclusive  on  the  facts  of  slavery  and  escape,  and  that 
the  only  point  open  is  that  of  identity.  That  is  so  if 
he  adopts  the  proper  mode  of  proceeding  to  make  it  so. 
Section  10  of  the  Fugitive  Slave  Law  provides  a  cer 
tain  mode  of  proceeding,  anomalous,  in  violation  of 
all  rules  of  common  law,  common  right  and  common 
reason,  a  proceeding  that  has  not  its  precedent,  so  far 
as  I  can  learn,  in  the  legislation  of  any  Christian  na 
tion,  therefore  to  be  strictly  construed,  and  not  to  be 
availed  of  unless  strictly  followed.  It  provides  that 
the  questions  of  slavery  and  escape  shall  be  tried,  ex 
parte,  in  the  State  from  which  the  man  escaped,  and 
not  in  the  State  where  he  is  found.  The  hearing  and 
judgment  are  to  be  there  and  not  here.  This  judgment, 
being  authenticated,  is  to  be  produced  here,  and  the 
commissioner  here  has  only  jurisdiction  to  inquire 
whether  the  person  arrested  is  the  person  named  in 
the  judgment.  He  cannot  go  into  the  matters  there 
decided,  but  only  see  if  the  record  fits  the  man. 

Section  6  of  the  statute  provides  an  entirely  differ 
ent  proceeding.  It  authorizes  the  court  here  to  try  the 
questions  of  slavery  and  escape,  as  well  as  identity, 
and  requires  them  to  be  tried  by  evidence  taken  here, 
or  certified  from  the  State  from  which  he  escaped,  or 
both.  It  is  not  pretended  that  this  transcript  of  a  re 
cord  is  such  evidence.  Now,  which  proceeding  are  we 
under?  Doubtless  under  that  provided  in  the  sixth 
section.  The  claimant  introduces  Mr.  Brent,  and  by 
him  offers  evidence  to  prove  the  fact  of  slavery,  the 
title  of  Colonel  Suttle,  and  the  escape.  He  goes  fully 
into  these  points.  This  was  not  offered  as  a  mode  of 
proving  identity.  The  identity  was  proved  first,  and 
then  the  other  evidence  was  put  in.  It  was  professedly 
to  prove  title  and  escape.  Parts  of  it  were  objected  to 


224  RICHARD  HENRY  DANA,  JR. 

as  not  competent  to  prove  those  points,  and  advocated 
as  competent  for  that  purpose,  and  on  no  other  ground, 
and  ruled  in  or  ruled  out  on  that  ground.  They  intro 
duced  evidence  tending  to  show  that  a  certain  negro 
woman  was  a  slave  of  Colonel  Suttle's  and  that  that 
woman  was  the  mother  of  Burns,  and  that  his  brothers 
and  sisters  are  slaves,  and  they  introduced  evidence 
tending  to  show  an  escape,  in  the  same  manner.  After 
that,  they  offered  the  record  and  we  objected  to  it, 
and  it  was  received  de  bene  esse,  and  its  admissibility 
is  now  to  be  decided  upon. 

We  say  that  the  two  proceedings  cannot  be  com 
bined.  The  jurisdiction  and  duties  of  the  magistrate 
are  different  in  the  two  cases.  The  rights  of  parties 
are  different.  It  is  evident  that  the  statute  makes 
them  different  proceedings  and  not  merely  different 
proofs,  for  they  are  not  merely  put  into  separate  sec 
tions,  but  each  section  contains  a  repetition  of  the 
foundation  of  a  proceeding,  its  progress,  the  decision 
and  execution,  and  each  provides  for  the  receiving  of 
evidence  of  identity.  There  is  a  different  form  of  cer 
tificate  required  in  the  two  cases.  On  the  face  of  the 
statute  they  are  two  proceedings.  You  cannot  com 
bine  scire  facias  on  a  record  with  a  count  in  assumpsit, 
proving  the  original  debt  by  parol.  You  cannot,  on  the 
voir  dire,  examine  the  party  himself,  and  prove  his  in 
terest  by  other  evidence  also. 

Even  if  the  record  can  be  combined  with  parol 
proof,  it  can  hardly  be  contended  that  it  is  conclusive 
against  the  proof  the  claimant  himself  puts  with  it. 
When  the  statute  says  it  is  conclusive,  it  means  that 
the  defendant  is  not  admitted  to  contradict  it  by 
proof.  But  if  the  claimant  introduces  proof  which 
overthrows  its  allegations,  can  he  contend  that  it  is 


RENDITION  OF  ANTHONY  BURNS 

conclusive?  If  he  proves  that  the  right  to  the  certifi 
cate  is  in  Millspaugh,  and  not  in  Colonel  Suttle,  can 
he  fall  back  on  his  record  and  claim  a  certificate  for 
Colonel  Suttle?  If  he  proves  that  the  man  did  not  es 
cape,  can  he  fall  back  on  his  record  and  claim  a  certi 
ficate  for  an  escaped  fugitive? 

I  pray  your  Honor,  earnestly,  to  confine  this  record 
—  the  venomous  beast  that  carries  the  poison  to  life 
and  liberty  and  hope  in  its  fang  —  to  confine  it  in  the 
straitest  limits.  It  deserves  a  blow  at  the  hand  of 
every  man  who  meets  it. 

If  your  Honor  considers  the  record  as  admissible,  in 
other  respects,  and  conclusive  if  admitted,  we  have  ob 
jections  to  offer  to  it  from  the  nature  of  its  contents 
and  form. 

In  the  first  place, it  does  not  purport  to  be  a  "record 
of  the  matters  proved."  It  is  all  in  the  way  of  recital. 
It  says,  "On  the  application  of  Charles  F.  Suttle, 
who  this  day  appeared  and  made  satisfactory  proof 
that,  etc.,  it  is  ordered  that  the  matters  so  proved  and 
set  forth  be  entered  on  the  records  of  this  court,"  and 
there  it  ends.  Well,  have  they  entered  the  facts  on  the 
record?  If  so,  I  should  like  to  see  the  entry.  Where  is 
the  transcript  of  that  record?  All  we  have  here  is  the 
porch  to  the  building,  with  a  superscription  reciting 
what  is  to  be  found  within.  We  are  entitled  to  the 
building  and  its  contents. 

In  the  next  place,  the  record  does  not,  as  I  have 
already  once  observed,  set  forth  a  description  of  the 
person  "with  such  convenient  certainty  as  may  be." 
It  does  not  tell  you  whether  he  is  a  negro,  a  mulatto, 
a  white,  or  an  Indian.  The  rest  of  the  description 
would  be  full  enough,  if  it  fitted  the  prisoner  at  the  bar. 
That  goes,  to  be  sure,  to  the  point  of  identity.  But  let 


RICHARD  HENRY  DANA,  JR. 

me  remind  you,  sir,  here,  that  a  scar  is  not  a  large 
brand,  and  that  a  scar  is  no  adequate  description  of 
the  state  or  appearance  of  that  man's  hand. 

The  record  is  also  objectionable,  because  it  does  not 
allege  that  he  escaped  into  another  state.  Unless  he 
has  escaped  into  another  state,  the  casus  fcederis  does 
not  arise.  And  how  is  your  Honor  to  know  that  he  did 
escape  into  another  state?  The  only  evidence  you  can 
legally  receive  is  on  the  point  of  identity.  If  you  pro 
ceed  strictly  by  the  record,  you  are  without  evidence 
of  one  great  fact  necessary  to  call  into  action  the  con 
stitutional  powers. 

We  have  great  confidence,  please  your  Honor,  that 
the  record  will  be  excluded  on  one  or  more  of  these 
points ;  or  that,  if  admitted,  we  may  control  it  by  the 
claimant's  own  testimony. 

Does  he  then,  by  the  claimant's  own  evidence,  owe 
to  Colonel  Suttle  service  and  labor? 

Their  evidence  shows  conclusively  that  he  does  not. 
Mr.  Brent  tells  us  that  Colonel  Suttle  made  a  lease  of 
him  to  a  Mr.  Millspaugh  of  Richmond,  in  January  last, 
and  that  he  was  in  the  service  of  Mr.  Millspaugh  when 
he  disappeared.  It  is  the  ordinary  case  of  a  lease  of  a 
chattel.  The  lessee  has  the  temporary  property  and 
control.  The  reversioner  has  no  right  to  interfere  with 
the  possession  or  direction  of  the  chattel  during  the 
lease.  This  proceeding  has  always  been  defended,  by 
those  who  hold  it  to  be  constitutional,  on  the  ground 
that  it  merely  secures  and  affects  the  temporary  con 
trol  of  the  slave,  and  does  not  affect  the  general  pro 
perty.  It  is  not  a  judgment  in  rent.  There  is  no  decree 
affecting  title.  If  this  is  so,  there  can  be  no  pretense 
of  a  right  on  the  part  of  the  reversioner  to  the  certifi 
cate  prayed  for  here.  A  little  consideration  makes  this 


RENDITION  OF  ANTHONY  BURNS  227 

clear.  The  claimant  says  he  has  escaped  without 
leave,  and  asks  for  power  to  reduce  him  into  posses 
sion  and  under  control  again  —  into  his  own  posses 
sion  and  under  his  own  control.  Now,  Mr.  Millspaugh 
has  the  sole  right  of  possession  and  control.  Mr.  Mills 
paugh  may  allow  him  to  come  to  Massachusetts  and 
stay  here  until  the  end  of  the  lease,  if  he  chooses.  Colo 
nel  Suttle  has  nothing  to  say  about  it.  If  Mr.  Mills 
paugh  does  not  return  him  to  Colonel  Suttle  at  the 
end  of  his  lease,  he  is  liable  to  Colonel  Suttle  on  his 
bond,  which  Mr.  Brent  tells  us  is  given  in  these  cases. 
Suppose  your  Honor  should  grant  the  certificate,  and 
Colonel  Suttle  should  take  the  man  to  Mr.  Millspaugh, 
Mr.  Millspaugh  would  say  to  him,  "Why  are  you  car 
rying  my  man  about  the  country?  I  have  not  asked 
or  desired  you  to  do  any  such  thing." 

"But,"  says  Colonel  Suttle,  "I  have  a  certificate 
from  a  commissioner  in  Boston  certifying  that  he  is 
now  owing  me  service  and  labor,  and  authorizing  me 
to  take  and  carry  him  off." 

"Then  the  commissioner  did  not  know  that  I  had 
a  lease  of  him." 

"Yes,  he  did.  Mr.  Brent  let  that  out.  It  came  very 
near  upsetting  our  case.  But  we  got  our  certificate, 
somehow  or  other,  notwithstanding." 

But  no  such  answer  will  be  given  to  any  certificate 
to  be  issued  by  your  Honor.  On  the  contrary,  when 
Colonel  Suttle  goes  back  to  Virginia  and  tells  Mr. 
Millspaugh  that  he  was  refused  the  certificate,  Mr. 
Millspaugh  will  say  to  him:  "To  be  sure  you  were. 
Did  you  not  know  law  enough  to  know,  you  and  Brent 
together,  that  you  had  no  right  to  the  possession  and 
control  of  the  man  I  have  hired  on  a  lease?  Did  you 
suppose  the  Boston  commissioners  would  have  so 


228  RICHARD  HENRY  DANA,  JR. 

little  regard  for  this  species  of  property  in  Virginia  as 
to  give  it  away  to  the  first  comer?" 

Besides  this  lease,  leaving  only  a  reversion  in  Colonel 
Suttle,  the  reversion  itself  is  mortgaged.  Mr.  Brent 
told  us,  in  his  simplicity,  thinking  he  was  all  the  time 
proving  prodigious  acts  of  ownership,  that  Colonel 
Suttle  mortgaged  Burns,  with  other  property,  to  one 
Towlson.  This  mortgage  has  never  been  paid  or  dis 
charged,  so  far  as  we  know.  The  evidence  leaves  it 
standing.  Even  if  the  reversioner  could  otherwise  have 
this  certificate,  he  cannot  here,  for  there  is  a  mortgage. 
A  mortgage  of  a  chattel  passes  the  legal  property,  so 
that  the  mortgagor  cannot  maintain  trover  for  its  con 
version.  (Holmes  vs.  Bell,  3  Cush.) 

There  is  greater  need  for  adhering  to  this  rule  as  to 
the  right  of  present  possession  and  control  in  this  pro 
ceeding  than  in  ordinary  actions,  for  an  escape  is  an 
essential  element  in  the  claimant's  case.  To  consti 
tute  an  escape,  the  fugitive  must  have  gone  away 
against  the  will  of  the  person  having  a  right  to  say 
whether  he  shall  go  or  come.  This  person  is  the  lessee. 
As  Colonel  Suttle  could  not  authorize  Burns  to  leave 
Virginia,  so  neither  could  he  forbid  his  leaving  it.  He 
has  simply  nothing  to  say  about  it.  He  cannot  author 
ize  him  to  stay  in  Massachusetts,  nor  can  he  compel 
him  to  go  away.  He  may  say  that  if  he  cannot,  his 
reversion  is  good  for  nothing.  That  is  the  case  with  all 
leases  of  chattels.  He  should  think  of  that  when  he 
parts  with  his  property.  He  does  provide  for  it.  He 
takes  a  bond.  If  the  man  is  not  returned  to  him  at  the 
end  of  his  lease,  let  him  look  to  his  bond !  Let  him  not 
come  here,  to  Massachusetts,  disturb  the  peace  of 
the  nation,  exasperate  the  feelings  of  our  people  to  the 
point  of  insurrection  by  this  revolting  spectacle,  sum- 


RENDITION  OF  ANTHONY  BURNS  229 

mon  in  the  army  and  navy  to  keep  down  by  bayonets 
the  great  instincts  of  a  great  people,  haul  to  prison 
our  young  men  of  education  and  character,  and  perse 
cute  them  even  unto  strange  cities,  and  cause  the 
blood  of  a  man  to  be  shed.  Let  him  look  to  his  bond ! 
If  he  must  peril  life,  disturb  peace,  outrage  feelings, 
and  exasperate  temper  from  one  end  of  the  Union  to 
the  other,  let  him  do  it  for  something  that  belongs  to 
him,  not  for  a  mortgaged  reversion  in  a  man.  Let  him 
look  to  his  bond ! 

Mr.  Millspaugh,  who  alone  has  the  right,  if  any  one, 
to  institute  these  proceedings,  has  done  nothing  about 
them.  They  do  not  produce  even  his  affidavit. 

In  the  next  place,  setting  aside  the  difficulty  about 
the  lease,  and  the  mortgage,  and  the  identity,  has  the 
man  ever  escaped?  He  is  said  to  have  escaped  from 
the  control  and  possession  of  Mr.  Millspaugh.  How 
do  we  know  that?  The  only  evidence  is  that  of  Mr. 
Brent,  and  what  does  Mr.  Brent  know  about  it?  He 
only  knows  that  he  was  in  Richmond  on  the  20th,  and 
was  missing  on  the  24th.  He  does  not  even  say  that 
he  has  ever  spoken  to  Mr.  Millspaugh  about  it,  or  that 
Mr.  Millspaugh  was  at  home,  or  has  complained  about 
it.  Mr.  Millspaugh  may  have  given  him  leave,  or  may 
not  care  whether  he  is  away  or  not.  There  is  no  evi 
dence  of  an  escape.  There  is  only  evidence  that  he  is 
missing.  He  was  there.  Now  (for  the  argument,  grant 
it)  he  is  here.  What  of  it?  Did  he  come  away  of  his  own 
will,  and  against  the  will  of  Mr.  Millspaugh?  Unless 
both  these  concur,  there  is  no  escape.  There  is  no  evi 
dence  on  either  point,  except  the  evidence  of  the  pris 
oner,  which  they  have  put  in.  Mr.  Brent  says  that, 
on  the  night  of  the  arrest,  Colonel  Suttle  asked  the 
prisoner  how  he  came  here.  He  replied  that  he  was  at 


230  RICHARD  HENRY  DANA,  JR. 

work  on  board  a  vessel,  became  tired  and  fell  asleep, 
and  was  brought  off  in  the  vessel.  As  they  have  put 
in  this  evidence,  they  are  bound  by  it.  This  shows 
there  was  no  escape,  for  it  is  the  only  evidence  at 
all  bearing  upon  the  character  of  his  act.  Taking  this 
to  be  true,  as  the  claimants  must,  there  is  no  escape. 
In  Aves's  case,  18  Pickering,  193,  and  Sims's  case,  7 
Gushing,  285,  it  has  been  decided  that  the  escape  is 
the  casus  fcederis  under  the  Constitution.  No  matter 
how  the  slave  got  here,  if  he  did  not  voluntarily  es 
cape  against  his  master's  will,  unless  both  these  ele 
ments  concur,  he  cannot  be  taken  back.  Therefore 
the  slave  was  held  free,  in  a  case  where  he  and  his  mas 
ter  were  both  sent  here  by  a  superior  power,  in  a  pub 
lic  vessel.  (Referred  to  in  Sims's  case.) 

If  there  was  any  doubt  about  this  matter  of  escape, 
the  point  should  be  determined  against  the  claimant, 
because  he  has  failed  to  produce  proof  within  his  power 
which  would  settle  the  matter.  He  has  not  produced 
the  only  man  beside  the  fugitive  who  knows  whether 
he  did  escape  or  not.  If  he  could  not  produce  him  in 
person,  if  there  be  a  judge  or  a  justice  of  the  peace  in 
the  Old  Dominion,  he  could  have  brought  his  affidavit. 
He  has  had  time  to  procure  it  since  this  trial  began. 
He  does  not  ask  for  a  delay  that  he  may  procure  it. 

The  only  evidence,  in  this  conflict,  which  can  aid 
your  Honor's  judgment,  is  the  evidence  of  the  admis 
sion  of  the  prisoner,  made  to  Colonel  Suttle,  on  the 
night  of  the  arrest.  He  was  arrested  suddenly,  on  a 
false  pretense,  coming  home  at  nightfall  from  his  day's 
work,  and  hurried  into  custody,  among  strange  men, 
in  a  strange  place,  and  suddenly,  whether  claimed 
rightfully  or  claimed  wrongfully,  he  saw  he  was 
claimed  as  a  slave,  and  his  condition  burst  upon  him 


RENDITION  OF  ANTHONY  BURNS 

in  a  flood  of  terror.  This  was  at  night.  You  saw  him, 
sir,  the  next  day,  and  you  remember  the  state  he  was 
then  in.  You  remember  his  stupefied  and  terrified  con 
dition.  You  remember  his  hesitation,  his  timid  glance 
about  the  room,  even  when  looking  in  the  mild  face 
of  justice.  How  little  your  kind  words  reassured  him. 
Sir,  the  day  after  the  arrest  you  felt  obliged  to  put  off 
his  trial  two  days,  because  he  was  not  in  a  condition 
to  know  or  decide  what  he  would  do. 

Now,  you  are  called  upon  to  decide  his  fate  upon 
evidence  of  a  few  words,  merely  mumblings  of  assent 
or  dissent,  perhaps  mere  movings  of  the  head,  one  way 
or  the  other,  construed  by  Mr.  Brent  into  assent  or 
dissent,  to  questions  put  to  him  by  Colonel  Suttle,  put 
to  him  at  the  moment  the  terrors  of  his  situation  first 
broke  upon  him.  That  you  have  them  correctly,  you 
rely  on  the  recollections  of  one  man,  and  that  man  tes 
tifying  under  incalculable  bias.  If  he  has  misappre 
hended  or  misrepresented  the  prisoner  in  one  respect, 
he  may  in  another.  In  one  respect  we  know  he  has. 
He  testifies  that  when  Colonel  Suttle  asked  him  if  he 
wished  to  go  back,  he  understood  him  to  say  he  did. 
This  we  know  is  not  true.  The  prisoner  has  denied  it 
in  every  form.  If  he  was  willing  to  go  back,  why  did 
they  not  send  to  Coffin  Pitts's  shop,  and  tell  the  pris 
oner  that  Colonel  Suttle  was  at  the  Revere  House,  and 
would  give  him  an  opportunity  to  return?  No,  sir, 
they  lurked  about  the  thievish  corners  of  the  streets, 
and  measured  his  height  and  his  scars  to  see  if  he  an 
swered  to  the  record,  and  seized  him  by  fraud  and  vio 
lence,  six  men  of  them,  and  hurried  him  into  bonds 
and  imprisonment.  Some  one  hundred  hired  men, 
armed,  keep  him  in  this  room,  where  once  Story  sat  in 
judgment  —  now  a  slave-pen.  One  hundred  and  fifty 


RICHARD  HENRY  DANA,  JR. 

bayonets  of  the  regulars,  and  fifteen  hundred  of  the 
militia  keep  him  without.  If  all  that  we  see  about 
us  is  necessary  to  keep  a  man  who  is  willing  to  go  back, 
pray,  sir,  what  shall  we  see  when  they  shall  get  hold  of 
a  man  who  is  not  willing  to  go  back? 

I  regret,  extremely,  that  you  did  not,  sir,  adopt  the 
rule  that  in  the  trial  of  an  issue  of  freedom,  the  admis 
sions  of  the  alleged  slave,  made  to  the  man  who  claims 
him,  while  in  custody,  during  the  trial,  should  not  be 
received.  That  ruling  would  have  been  sustained  by 
reason,  and  humanity,  and  precedent.  Failing  that,  I 
hoped  the  facts  of  this  case  would  show  enough  of  in 
timidation  to  throw  out  the  evidence.  At  least,  they 
show  enough  to  deprive  it  of  all  weight.  I  have  re 
minded  you  of  his  condition  the  next  morning.  What 
must  it  have  been  there?  One  of  his  keepers,  True, 
says  he  was  that  night  a  good  deal  intimidated.  Who 
intimidated  him?  Do  you  recollect  the  significant 
words  of  Colonel  Suttle,  "I  make  no  compromises  with 
you!  I  make  you  no  promises  and  no  threats."  This 
means :  It  is  according  to  the  course  you  take  now  that 
you  will  be  treated  when  I  get  you  back.  If  you  put 
me  to  no  trouble  and  expense,  it  will  be  few  stripes 
or  no  stripes.  If  you  do,  it  will  be  many  stripes.  Was 
ever  man  more  distinctly  told  it  would  be  better  for 
him  if  he  acquiesced  in  everything,  yielded  every 
thing,  assented  to  everything?  That  is  what  those 
words,  uttered  in  a  tone,  no  doubt,  that  he  well  under 
stood,  conveyed  to  his  mind.  But  I  am  wasting  words. 
I  know  that  your  Honor  will  give  little  or  no  weight  to 
testimony  so  liable,  at  all  times,  to  misconception, 
misrecollection,  perversion,  and,  in  this  case,  so  cruel 
to  use  against  such  a  person  under  such  circumstances. 

You  recognized,  sir,  in  the  beginning,  the  presump- 


RENDITION  OF  ANTHONY  BURNS  233 

tion  of  freedom.  Hold  to  it  now,  sir,  as  to  the  sheet- 
anchor  of  your  peace  of  mind  as  well  as  of  his  safety. 
If  you  commit  a  mistake  in  favor  of  the  man,  a  pecun 
iary  value,  not  great,  is  put  at  hazard.  If  against  him, 
a  free  man  is  made  a  slave  forever.  If  you  have,  on 
the  evidence  or  on  the  law,  the  doubt  of  a  reasoning 
and  reasonable  mind,  an  intelligent  misgiving,  then, 
sir,  I  implore  you,  in  view  of  the  cruel  character  of 
this  law,  in  view  of  the  dreadful  consequences  of  a  mis 
take,  send  him  not  away,  with  that  tormenting  doubt 
on  your  mind.  It  may  turn  to  a  torturing  certainty. 
The  eyes  of  many  millions  are  upon  you,  sir.  You  are 
to  do  an  act  which  will  hold  its  place  in  the  history  of 
America,  in  the  history  of  the  progress  of  the  human 
race.  May  your  judgment  be  for  liberty  and  not  for 
slavery,  for  happiness  and  not  for  wretchedness;  for 
hope  and  not  for  despair;  and  may  the  blessing  of  Him 
that  is  ready  to  perish  come  upon  you. 


XI 
THE  "GRASP  OF  WAR"   SPEECH1 

JUNE  21,  1865. 

[There  are  two  points  in  this  speech  of  special  interest :  one  the 
theory  by  which  our  government  could  dictate  terms  for  the  re 
storation  of  the  states  lately  in  secession  and  at  war;  and  the  other, 
Mr.  Dana's  opinion  that  the  voting  franchise  should  be  granted 
the  freedmen  on  property  and  educational  qualifications. 

As  to  the  first  point,  Mr.  Dana's  speech  is  plain  enough,  that  the 
federal  government  in  times  of  peace  had  no  right  to  control  the 
domestic  regulations  of  the  various  states  on  such  subjects  as 
slavery,  education,  and  the  right  to  vote  or  testify;  that  the  consti 
tutions  of  the  various  states  forming  the  Southern  Confederacy, 
before,  during,  and  at  the  end  of  the  war,  recognized  slavery  and 
discriminated  against  persons  of  color;  that  a  great  war  had  been 
carried  on,  the  main  issues  of  which  were  slavery  and  union;  and 
that  the  Confederate  States  were  still  in  the  "grasp  of  war." 

But  there  is  one  subject,  which  was  very  familiar  and  well 
known  to  Mr.  Dana's  hearers  at  the  time,  but  is  not  so  well  under 
stood  now,  and  that  is,  the  main  doctrine  of  the  war-powers  under 
the  United  States  Constitution.  Therefore  let  me  state  that  there 
is  one  principle  recognized  in  the  construction  of  that  Constitu 
tion,  and  that  is,  that  where  that  instrument  is  silent  or  doubtful, 
we  must  consider  the  principles  of  jurisprudence  existing  at  the 
time  of  its  adoption,  and  the  law  of  national  self-preservation 
within  those  principles.  The  Constitution  had  no  provision  as  to 
what  would  happen  if  a  number  of  the  states  should  secede, 

1  Delivered  at  a  meeting  held  in  Faneuil  Hall,  Boston,  to  consider  the 
subject  of  "LRe-organization  of  the  Rebel  States."  Reprinted  from  an 
original  report. 


THE  "GRASP  OF  WAR"  SPEECH  235 

wrongfully  form  a  de  facto  nation  and  wage  war  against  the  federals, 
government  on  important  issues.  In  the  absence,  then,  of  such  au 
provision,  Mr.  Dana  invoked  the  recognized  principles  as  applied* 
to  w.ap  These,  Mr.  Dana  claimed,  gave  the  successful  party  the 
right  to  enforce  the  issues  on  which  the  war  was  fought  as  against 
the  defeated  power,  as  long  as  it  was  within  the  "grasp  of  war." 

While  Mr.  Dana  set  forth  the  principles  by  which  the  issue  of 
the  Civil  War  could  constitutionally  be  established,  it  by  no 
means  follows  that  he  approved  the  extremes  to  which  the  prin 
ciples  were  carried  out,  and  the  "carpet-bag"  government  which 
followed.  He  was  quite  disgusted  with  these.  As  an  illustration, 
the  only  estrangement  between  Mr.  Dana  and  his  life-long  friend, 
Charles  Sumner,  arose  because  Mr.  Dana  opposed  Sumner's 
extreme  reconstruction  views.  He  had  differed  from  Mr.  Sum- 
ner's  policies  during  the  Free  Soil  movement  before  the  war;  but 
that  did  not  prevent  Mr.  Sumner  from  calling  at  our  house  and 
talking  with  my  father  and  entertaining  us  children  nearly  every 
Sunday  after  his  two  o'clock  dinner  at  Longfellow's.  Their  dif 
ferences  on  the  reconstruction  policies,  however,  were  such  that 
Sumner  broke  off  social  relations  with  my  father  until  duringthe 
last  year  or  two  before  Sumner  died. 

I  would  also  call  attention  to  a  popular  belief,  with  which  Mr. 
Dana  had  to  contend,  not  only  in  this  speech,  but  in  the  early 
days  of  the  war  in  the  Prize  Causes.  Some  people  in  the  North 
thought  it  necessary,  in  order  to  be  consistent  in  our  view  that 
states  had  no  right  to  secede,  and  to  maintain  that  the  Southern 
Confederacy  should  not  be  recognized  by  foreign  nations  as  an 
independent  sovereignty,  to  minimize  the  war  into  a  local,  insur 
rectionary  movement.  Even  President  Lincoln  and  Secretary  of 
State  Seward  felt  this  in  some  of  the  early  proclamations  and 
diplomatic  correspondence.  After  the  decision  of  the  United 
States  Supreme  Cpurt,  unanimously  sustaining  the  war-powers 
in  the  way  of  blockade,  prize  and  capture  of  enemies'  property  at 
sea,  in  the  war  against  the  Confederacy,  many  prominent  per 
sons1  claimed  that  that  decision  went  a  great  way  towards  ad 
mitting  the  right  of  the  states  to  secede,  and  recognizing  their 
1  See  The  Law  Magazine,  London,  November,  1863. 


236  RICHARD  HENRY  DANA,  JR. 

independence.  To  counteract  these  views,  Mr.  Dana,  in  1864, 
published  a  pamphlet  called  "Enemy's  Territory  and  Alien  Ene 
mies  —  What  the  Supreme  Court  decided  in  the  Prize  Causes."1 
How  persistent  was  this  popular  belief  which  Mr.  Dana  tried  to 
counteract  appears  in  the  Biography,  where,  speaking  of  this 
"Grasp  of  War"  speech,  Mr.  Adams  says:  - 

"Dana's  mind  was  naturally  subtle.  He  was  always  ready  to 
devise  some  ingenious,  logical  process  for  avoiding  either  horn 
of  the  dilemma,  just  as,  in  'the  Prize  Cases,'  he  showed  the  Su 
preme  Court  how  the  United  States  could  at  the  same  time  be 
carrying  on  a  war,  with  all  the  rights  incident  to  war,  so  far  as  the 
Southern  Confederacy  was  concerned ;  and  yet,  so  far  as  foreign 
powers  and  neutrality  were  involved,  it  was  no  war  at  all,  but 
only  a  local  insurrectionary  movement.  But  when  the  issue  was 
decided  in  the  field,  —  when  Lee  had  surrendered  at  Appomat- 
tox,  and  Davis  was  a  prisoner  at  Fortress  Monroe,  —  the  '  local 
insurrectionary  movement '  hypothesis  was  quietly  though  some 
what  contemptuously  relegated  to  the  receptacle  of  things  for 
which  no  further  use  exists.  Reconstruction  then  became  a 
question  of  practical  politics,  and  the  provisions  of  the  Consti 
tution  had  to  be  curiously  scanned-and  construed  anew.  The  war- 
power  admitted  of  the  desired  development,  and  Mr.  Dana  was 
again  equal  to  the  occasion." 

Even  practising  lawyers  entertained  this  popular  opinion.  Mr. 
Thornton  K.  Lothrop  wrote  a  letter  on  the  subject  of  Mr.  Dana's 
argument,  which  is  published  in  the  Biography.  Though  asso 
ciated  with  Mr.  Dana  at  the  time  of  the  Prize  Causes,  Mr. 
Lothrop  says  he  had  not  "taken  any  professional  part  in  these 
cases."  He  wrote  from  Europe,  "with  no  opportunity  of  con 
sulting  .  .  .  papers  or  any  books,"  after  a  lapse  of  twenty-seven 
years.  In  this  letter,  he  expressed  the  idea  that  Mr.  Dana  was 
performing  (the  simile  is  my  own)  in  the  arena  before  the  Su 
preme  Court  the  difficult  task  of  riding  with  one  foot  on  the 
war-power  horse  and  the  other  on  a  "  citizens-in-arms "  pony 
going  the  other  way.  Had  Mr.  Lothrop  had  an  opportunity  to 
study  the  briefs,  and  the  opinion  of  the  court,  he  would  have 
1  Published  with  this  collection. 


THE  "GRASP  OF  WAR"  SPEECH  237 

found  that  Mr.  Dana  was  sitting  squarely  on  the  war-horse 
alone,  and  that  it  was  his  opponents  who  were  exhibiting  the 
"  citizens-in-arms  "  pony.  Mr.  Dana  never  felt  that  it  was  neces 
sary  so  to  minimize  the  war. 

It  was  his  opponents,  not  he,  that  claimed  there  was  "  no  war 
but  only  a  local,  insurrectionary  movement,"  a  mere  "conflict 
with  citizens  in  rebellion." 

As  to  the  danger  that  calling  the  conflict  "a  great  war"  might 
lead  to  the  recognition  of  the  independence  by  foreign  countries, 
how  was  it  in  our  dealings  with  the  Spanish  colonies  in  America, 
in  revolt  against  Spain?  As  long  as  Spain  was  carrying  on  a  vig 
orous  and  effective  war,  it  was  our  general  policy  to  remain  neu 
tral.  Only  after  long  periods  of  a  mere  theoretical,  ineffective, 
paper  war,  in  which  Spain  had  practically  abandoned  active  at 
tempts  at  coercion,  did  we  recognize  their  independence. 

It  is  true  that,  during  the  first  month  or  two  of  the  Civil  War, 
Mr.  Dana  hoped,  with  many  others,  that  it  would  end  in  sixty 
days;  but  thereafter,  that  there  was  a  war,  and  a  "large  war," 
formed  the  chief  contention  of  Mr.  Dana  in  the  Prize  Causesl 
These  causes  arose  out  of  captures  at  sea,  that  were  made  within 
the  first  few  months  after  the  firing  on  Fort  Sumter.  In  Mr. 
Dana's  argument  before  Judge  Sprague,  and  later  before  the 
United  States  Supreme  Court,  all  within  the  first  two  years  of  the 
war,  his  whole  contention  for  the  right  of  coercion  by  way  of 
blockade,  prize,  and  capture  of  enemy's  property  at  sea,  was 
based  upon  the  argument  that  there  was  a  war,  and  a  large  warj 
and  on  the  existence  of  a  de  facto,,  though  not  de  jure,,  sovereigij 
power,  and  not  mere  citizens  in  rebellion,  with  which  we  were 
carrying  on  the  war,  and  boldly  claimed  that  both  sides  had  the 
status  and  rights  of  belligerents.  The  very  arguments,  and  even 
the  phrases  and  descriptions  used  in  the  "Grasp  of  War  "  speech 
in  1865,  follow  closely  those  made  in  the  Prize  arguments  in 
1861-63,  and  in  the  "Enemy's  Territory"  pamphlet  of  1864. 

In  order  to  show  that  I  correctly  state  Mr.  Dana's  view  as  to 
there  being  a  war  in  the  early  days,  in  which  he  was  consistent 
to  the  end,  let  me  turn  to  his  brief  in  the  Prize  Causes.  There 
Mr.  Dana  says  (page  13) :  — 


238  RICHARD  HENRY  DANA,  JR. 

"They  [the  Confederates]  attacked  the  forts,  troops  and  ships 
,,of  the  sovereign  [i.  e.,  federal]  government  by  sea  and  land,  and 
^Jjjghting  on  the  scale  of  a  'large  war'  is  going  on." 

(The  italics  are  my  own.) 

His  brief  had  shown  what  were  the  war-powers  in  a  war  be 
tween  independent  nations.  Having  established  these,  he  puts 
the  heading  for  the  fourth  section  of  his  brief  as  follows :  — 

"In  civil  or  domestic  war,  it  is  competent  for  the  sovereign  to 
exercise  belligerent  powers." 

He  also  says :  — 

"War  is  the  exercise  of  force  by  bodies  political,  or  bodies  as 
suming  to  be  bodies  political,  against  each  other,  for  the  purpose 
of  coercion." 

Then  he  states,  in  his  brief,  the  facts  as  they  existed,  as  fol 
lows  :  — 

"Millions  of  the  sovereign's  [the  Confederacy's]  subjects  unite 
in  the  establishment  of  a  new  government  over  a  portion  of  the 
territory  [of  the  United  States]  .  .  .  They  organize  a  sovereign 
state  over  all  this  territory,  not  as  a  temporary  expedient,  but  for 
a  permanency,  and  claim  jurisdiction  of  right  over  all  the  inhabit 
ants  of  the  territory.  Their  government  has  all  the  functions  of 
a  state,  judicial,  executive  and  legislative,  and  they  claim  recog 
nition  as  a  sovereign  by  other  powers.  They  establish  this  gov 
ernment  de  facto  over  the  territory,  and  claim  it  de  jure.  They 
treat  all  resistance  to  it  by  inhabitants  as  treason.  They  treat  all 
attempts  by  force  of  arms  to  put  down  this  government  and  re 
establish  the  old  sovereignty  as  acts  of  war.  They  declare  that 
war  exists  between  them  as  one  sovereignty,  the  parent  state  as 
another.  They  raise  armies  and  navies,  establish  a  conscription 
over  all  the  inhabitants,  issue  letters  of  marque,  and  establish 
prize  courts.  .  .  .  Foreign  nations  recognize  this  state  of  things 
as  war,  and  concede  to  each  of  the  powers  engaged  in  it  the  right 
of  belligerents." 

Again,  he  states  the  object  of  war  is  "coercion  of  the  power  you 
are  engaged  with";  and  says  (page  12),  — 

"These  circumstances  show  the  doctrine  of  'enemy's  property' 
is  applicable  to  domestic  or  civil  wars." 


THE  "GRASP  OF  WAR"  SPEECH  239 

Considering  the  objections  to  this,  he  says  (page  18),  — 
"The  objections  really  amount  to  this,  that  war  powers  can 
never  be  exercised  in  civil  wars  in  any  stage  except  by  the  rebels" 
Nowhere  in  this  brief,  nowhere  in  the  opinion  of  the  Supreme 
Court,  which  latter  would  be  read  over  the  civilized  world,  was 
there  any  attempt  to  minimize  the  war  so  far  as  foreign  countries 
and  neutrality  were  involved.  There  was  no  need  of  it.  He  not 
only  persuaded  the  Supreme  Court  that  there  was  a  war,  "but," 
to  quote  from  the  opinion,  "it  is  not  necessary,  to  constitute  a 
war,  that  both  parties  should  be  acknowledged  as  independent 
nations  or  sovereign  states"; l  and  again,  "It  is  not  necessarjv 
that  the  independence  of  the  revolting  province  or  state  should/ 
be  acknowledged  in  order  to  constitute  a  party  belligerent  in 


the  war."  2 

Again,  in  a  political  speech  at  Providence,  Rhode  Island,\ 
March  25,  1863,  Mr.  Dana  said,  "  We  are  at  war  —  in  a  war  of  ) 
immense  proportions." 

These  same  contentions,  repeatedly  made,  of  an  actual  and 
great  war  against  a  de  facto,  though  revolutionary,  government, 
which  gave  us  the  right  of  prize,  blockade,  and  capture  of  enemyls 
territory  during  the  war,  after  the  war,  Mr.  Dana  contends  in 
this  "Grasp  of  War"  speech,  gave  us  the  right  to  impose  conoj- 
tions  upon  those  states  which  had  voluntarily  submitted  their 
issues  to  the  arbitrament  of  war;  and  so,  from  the  first  year  of 
active  conflict  to  the  reconstruction  period,  Mr.  Dana's  position 
was  a  consistent  one  of  asserting  a  large  war.  His  argument  was 
consistent  with  the  facts.  He  convinced  the  entire  Supreme 
Court,  some  of  whom  were  democrats  in  sympathy  with  state 
supremacy,  and  who  were  not  likely  to  be  carried  away  by  mere 
"subtlety"  of  argument.  The  Supreme  Court,  dealing  with  the 
argument  of  Mr.  Dana's  opponents,  that  it  "is  not  a  war  but  is 
an  insurrection," 3  says  they  "cannot  ask  a  court  to  affect  a  tech 
nical  ignorance  of  the  existence  of  a  war,  which  all  the  world  ac 
knowledges  to  be  the  greatest  civil  war  known  in  the  history  of 

1  Prize  Causes,  2  Black,  666. 

2  Prize  Causes,  2  Black,  669. 

3  Quoted  from  the  opinion  of  the  court  in  the  above  case. 


i  r 


240  RICHARD  HENRY  DANA,  JR. 

the  human  race,  and  thus  cripple  the  arm  of  government  and  para 
lyze  its  power  by  subtle  definitions  and  ingenuous  sophisms."  It 
seems  to  me  that  Mr.  Dana  had  "his  feet  on  earth."  His  argu 
ment,  in  the  Prize  Causes,  in  his  "Enemy's  Territory"  and  in 
his  "Grasp  of  War"  speech,  was  to  reduce  confusion  of  mind  to 
simple,  fundamental  principles  of  jurisprudence,  based  upon 
existing  facts. 

In  the  Prize  arguments,  he  went  into  the  philosophy  of  war, 
showed  its  meaning  and  powers,  and  explained  the  technical  and 
somewhat  misleading  definitions  of  the  law  of  prize  in  the  light 
of  that  philosophy.  In  his  "Grasp  of  War"  speech  he  had  no 
need  for  a  waste  paper  receptacle  for  anything  he  had  pre 
viously  affirmed.  Before  publication  this  note  to  the  "Grasp  of 
War  "  speech  was  submitted  to  Mr.  Adams,  who  said  he  had  no 
definite  statements  of  Mr.  Dana's  in  mind,  but  assumed  that  he 
had  held  the  views  of  Lincoln,  Seward,  and  others,  of  the  neces 
sity  of  maintaining  before  the  European  powers  the  local  insurrec 
tion  theory,  which  later  had  to  be  discarded.  It  was  to  Mr. 
Dana's  credit  that  he  was  the  first  boldly  to  assert  the  existence 
of  a  great  war,  and  the  real  safety  and  true  policy  of  so  doing. 
If  Mr.  Dana's  "Grasp  of  War"  doctrine  is  not  correct,  then  it 
is  hard  to  see  why  all  the  constitutions  of  the  Southern  States 
adopted  under  coercion  which  must  otherwise  have  been  illegal 
are  not  theoretically,  at  least,  invalid,  and  perhaps  also  the  13th 
and  14th  Amendments  to  the  United  States  Constitution. 

As  the  entire  Supreme  Court  had  declared  that  it  was  the  op 
ponents  of  Mr.  Dana  in  the  Prize  Causes  whose  arguments  were 
"subtle,"  I  would  have  nothing  further  to  say  on  this  subject, 
did  it  not  furnish  me  a  text  for  emphasizing  once  more  Mr. 
Dana's  power  of  original  thought.  I  can  see  him  now,  short  (he 
was  only  five  feet  seven  inches  in  height),  erect,  with  square, 
broad  shoulders,  a  graceful  figure,  with  small  hands  and  feet, 
curling  hair  and  elastic  step,  walking  up  and  down  the  room, 
his  head  a  little  to  one  side,  his  eyes  slightly  raised,  thinking  out 
some  problem,  or  developing  the  arguments  in  its  support.  One 
frequent  form  of  problem  arose  when  the  accepted  definitions  of 
common  or  international  law  needed  recasting  or  differentiation , 


c  u  we...  -        *'  vr*  '**  "•  n  3  —  "    '    V  ^ 

fl-<ia..^  i  ^n    *«*ir 


f 

THE  "GRASP  OF  WAR"  SPEECH  &£       241 

4.3?  ~Ci  .js 

to  meet  some  new  state  of  facts.    Even  the  statute,  or  codified 

C  £  jf^ 

law,  with  its  confinement  to  set  language,  would  often  need  con 
struction  when  applied  to  cases  which  the  language  did  not  fit,  ' 
When  such  a  problem  arose,  he  set  himself  to  thinking  out  me" 
reasons  that  underlay  the  definitions.  I  heard  him  once  say  of  an 
eminent  lawyer  and  judge,  whom  in  other  respects  he  admired, 
that  this  man  seemed  to  think  that  legal  truths  are  in  set  phrases, 
and  that,  with  these  as  premises,  he  would,  by  logical  process, 
work  out  the  conclusions  as  applied  to  new  sets  of  facts,  and  if  the 
conclusions  led  to  injustice,  then  so  much  the  worse  for  justice;  the 
logic  must  stand.  To  minds  that  think  of  legal  problems  as  thus 
fettered  to  phrases,  Mr.  Dana's  idea  that  the  legal  reasons  and 
principles  were  the  masters  and  the  phrases  the  slaves,  and  Mr. 
Dana's  ways  of  arguing  would  seem  like  subtle  juggling  with  the 
r-y^  v  Jaw.  Yet,  as  in  science,  the  law  has  had  constant  need  of  reword 
ing,  and  it  is  only  as  so  recast  by  great  minds  into  language  mbre 
fitting  new  conditions,  that  our  plastic  common  and  internal 
tional  law  can  growlnore  and  more  nearly  towards  perfect  justipe. 
I  believe  Mr.  Dana's  mind  was  eminently  one  of  such  high  mas 
tery,  and  that  perhaps  no  instance  better  illustrates  this  than  his 
dealing  with  the  Prize  Causes  and  the  Reconstruction  problems. 
On  the  question  of  the  franchise  to  the  freedmen  on  education 
and  property  qualifications,  the  speech  itself  only  leads  up  to  that 
point,  and  prepares  the  mind  for  the  definite  statements  of  the 
address.  The  address1  was  drawn  by  Mr.  Dana  as  chairman  of 
the  committee  to  prepare  the  same.  This  speaks  of  the  disabili 
ties  of  those  in  the  South  with  a  "traceable  thread  of  African 
descent,"  which  "no  achievements  in  war  or  peace,  no  acquisi 
tions  of  property,  no  education,  no  mental  power  or  culture,  no 
merits,  can  overcome."  Again,  the  address  says,  "We  do  not  ask 
that  the  nation  shall  insist  on  an  unconditioned,  universal  suy 
frage";  and  later,  "We  declare  it  to  be  our  belief  that  if  the  n^- 
tion  admits  a  rebel  state  to  its  full  functions,  with  a  constitution 
which  does  not  secure  to  the  freedmen  the  right  of  suffrage  in  such 
manner  as  to  be  impartial  and  not  based  in  principle  upon  color, 
and  as  to  be  reasonably  attainable  by  intelligence  and  character 
1  The  parts  not  covered  by  Mr.  Dana's  speech  are  printed  just  after  it. 


242  RICHARD  HENRY  DANA,  JR. 

.  .  .  with  the  right  to  be  educated,  to  acquire  homesteads,  and 
to  testify  in  court,  the  nation  will  be  recreant  to  its  duty  to  itself 
and  to  them,  and  it  will  incur,  and  will  deserve  to  incur,  danger 
and  reproach  proportioned  to  the  magnitude  of  its  responsibility." 

Mr.  Dana  also  makes  a  clear  distinction  between  "social equal-, 
ity,"  which  he  disclaims,  and  political  privileges,  a  distinction 
now  becoming  better  understood.  He  says :  — 

"The  present  question  is  one  of  political  justice  and  safety,  and 
not  of  social  equality.  When  the  free  man  of  color,  educated  in 
the  common  schools,  deposits  a  vote  which  he  can  write  himself, 
gives  a  deposition  which  he  can  read  and  sign,  and  pays  a  tax  on 
the  homestead  he  has  bought,  the  law  forces  no  comparisons  be 
tween  his  intellectual,  moral,  physical,  and  social  condition  and 
that  of  the  white  citizen,  of  whatever  race  or  nation,  who  lives, 
votes,  and  testifies  by  his  side." 

It  is  now  so  generally  believed  that  a  property  and  educa 
tional  qualification  would  have  been  wisest  and  most  humane 
for  both  the  late  master  and  the  late  slave,  that  we  must  recur  to 
the  arguments  that  prevailed  at  that  time,  to  see  how  strong  they 
were.  It  was  then  said  that,  unless  universal  manhood  suffrage 
were  given  the  negroes,  they  would  be  unable  to  secure  education 
or  to  acquire  property,  and  would  be  in  danger  of  being  reduced 
to  a  condition  of  peonage,  even  should  the  Southern  States  in  their 
constitutions  grant  all  the  rights  which  we  urged.  The  arguments 
for  this  universal  colored  suffrage  were  based  upon  the  assump 
tion  that  their  conditions  were  those  of  the  men  of  America  of 
1776.  These  latter  were  educated  in  the  principles  of  liberty  and 
trained  in  the  exercise  of  self-government  in  town-meeting  and 
colonial  legislature,  and  were  men  of  education,  the  majority  of 
whom  were  freeholders.  They  could  skillfully  strike  and  ward 
with  the  weapons  of  franchise,  though  with  all  their  skill  they 
sometimes  erred ;  but  with  the  poor  f reedmen,  who  knew  nothing 
of  the  true  principles  of  liberty,  and  were  wholly  unskilled  in  the 
use  of  the  sharp  weapons  that  wound  the  clumsy  user,  it  was  a 
totally  different  proposition. 

As  a  matter  of  history,  when  given  the  ballot,  and  when  in  con 
trol,  instead  of  voting  money  for  their  education,  their  representa- 


THE  "GRASP  OF  WAR"  SPEECH  243 

lives  voted  money  for  salaries  for  themselves  and  their  mends, 
for  railroad  grants,  and  for  almost  everything  but  the  best 
interests  of  the  colored  race,  apart  from  the  few  who  got  special 
benefits,  and  the  colored  voters  were  misled  by  unscrupulous 
politicians.  The  results  are  all  too  well  known,  and  now  it  is 
generally  admitted  by  the  colored  people  themselves,  and  urged 
by  their  truest  friends,  that  their  great  hope  is  in  education, 
manual  and,  for  the  most  part,  rudimentary,  in  morality,  useful 
ness  in  the  community,  and  in  the  acquisition  of  property  by 
honest  work.  The  progress  of  the  race  in  these  respects  has 
recently  been  as  great  as  was  then*  retrogression  when  exercising 
universal  suffrage. 

It  is  interesting  to  note  that  Abraham  Lincoln,  March  13, 1864, 
had  somewhat  the  same  idea  of  limited  suffrage.  He  then  said, 
"I  hereby  suggest  .  .  .  whether  some  of  the  colored  people 
might  not  be  let  in  [to  the  elective  franchise],  as  for  instance  the 
very  intelligent,  and  especially  those  who  have  fought  gallantly 
in  our  ranks." 

Governor  Orr  of  South  Carolina,  one  of  the  Southern  leaders, 
approved  of  an  amendment  to  the  Constitution  of  North  Caro 
lina,  which  had  been  proposed,  allowing  colored  men  to  vote  who 
could  read  and  write,  or  who  had  property  worth  $250;  and  intel 
ligent  white  Southerners  in  North  Carolina,  Alabama,  Florida, 
Mississippi,  Texas,  and  Arkansas  formed  the  same  programme; l 
but  other  counsels  prevailed. 

Let  me  say  that  the  word  "  rebel "  in  this  speech  was  not 
used  in  ill  will,  but  because,  from  the  standpoint  of  those  who 
did  not  believe  in  the  right  of  secession,  the  Southern  States  in 
1865  were  in  "rebellion"  as  our  colonies  were  in  1775.] 

"GRASP  OF  WAR"  SPEECH 

MR.  PRESIDENT,  —  It  was  hoped  by  those  who  have 
summoned  us  together  this  morning  that  a  voice 

1  See  Rhodes,  History  of  the  United  States,  vol.  vi,  p.  28,  and  also  re 
ferences  in  index  under  "Negro  Franchise." 


244  RICHARD  HENRY  DANA,  JR. 

might  go  out  from  Faneuil  Hall,  to  which  the  people 
of  the  United  States  would  listen,  as  in  times  past. 

We  deprecate,  especially,  anything  like  political 
agitation  of  the  questions  before  us;  but  a  calm  con 
sideration  of  them  by  the  people  is  a  duty  and  a  neces 
sity.  For,  Mr.  President  and  fellow  citizens,  the  ques 
tions  pressing  upon  this  country  are  the  most  vast  and 
momentous  that  have  ever  presented  themselves  for 
solution  by  a  free  people. 

We  wish  to  know,  I  suppose,  first,  What  are  our 
powers?  That  is  the  first  question  —  what  are  our  just 
powers?  Second-- What  ought  we  to  do?  Third  — 
How  ought  we  to  do  it?  With  your  leave,  I  propose 
to  attempt  an  answer  to  these  three  questions. 

What  are  our  just  powers?  Well,  my  friends,  that 
depends  upon  the  answer  to  one  question  —  Have  we 
been  at  war,  or  have  we  not?  In  what  have  we  been 
engaged  for  the  last  four  years?  —  has  it  been  a  war, 
or  has  it  been  something  else  and  other  than  war?  I 
take  it  upon  myself  to  assert,  that  we  have  been  in  a 
condition  of  public  and  perfect  war.  It  has  been  no 
mere  suppression,  by  municipal  powers,  of  an  insur 
rection  for  the  redress  of  grievances.  It  has  been  a 
perfect  public  war.  The  government  has  a  right  to 
exercise,  at  its  discretion,  every  belligerent  power. 
[Applause.]  We  are  not  bound  to  exercise  them;  the 
enemy  cannot  compel  us  to  do  it;  but,  at  our  discre 
tion,  we  may  exercise  every  belligerent  power.  Do  you 
doubt  it?  Does  any  man  doubt  it?  [Voices  —  "No."] 

I  will  tell  you  why  you  must  not  doubt  it.  In  the 
first  place,  the  Supreme  Court  of  the  United  States 
has,  by  an  unanimous  decision,  held  that  we  are  in  a 
public  war,  and  that  the  government  can  exercise 
every  belligerent  power.  The  court  differed  as  to  the 


THE  "GRASP  OF  WAR"  SPEECH  245 

time  when  we  entered  upon  such  a  war,  and  whether 
recognition  of  war  by  Congress  was  necessary,  but 
that  we  came  to  a  war  at  last,  was  their  unanimous 
decision.  The  Prize  Courts,  like  the  Temple  of  Janus, 
are  closed  in  peace  and  open  only  in  war.  The  Prize 
Courts  have  been  thrown  open,  and  every  prize  that 
has  been  condemned  in  this  country  has  been  con 
demned  upon  the  principle  of  a  public  war.  Congress 
gave  us  no  rules  for  municipal  condemnation,  but  left 
the  Prize  Courts  to  the  rules  which  govern  public  in 
ternational  war.  We  have  condemned  the  prizes  upon 
the  same  rules,  and  no  other,  than  those  by  which  we 
condemned  them  in  the  war  with  Great  Britain  in 
1812.  This  course  of  the  Prize  Courts  has  been  sus 
tained  by  the  Supreme  Court,  acted  upon  by  the  Ex 
ecutive,  and  recognized  by  Congress.  The  statutes, 
too,  have  called  it  a  war,  in  terms.  The  soldiers  who 
are  enlisted  —  what  are  they  enlisted  for?  Why,  they 
are  enlisted  "for  the  war,"  are  they  not?  How  is  it  at 
this  moment?  Is  not  the  Executive  holding  those 
states  by  military  occupation?  Are  we  not  holding 
them  in  the  grasp  of  war?  You  cannot  justify  the 
great  acts  of  our  government  for  the  last  three  years 
upon  any  other  principle  than  the  existence  of  war. 
You  look  in  vain  in  the  municipal  rules  of  a  constitu 
tion  to  find  authority  for  what  we  are  doing  now. 
You  might  as  well  look  into  the  Constitution  to  find 
rules  for  sinking  the  Alabama  in  the  British  Channel, 
—  to  find  rules  for  taking  Richmond.  You  might  as 
well  look  there  to  find  rules  for  lighting  General 
Grant's  cigar.  [Laughter.]  No;  we  stand  upon  the 
ground  of  war,  and  we  exercise  the  powers  of  war. 

Now,  my  fellow  citizens,  what  are  those  powers  and 
rights?  What  is  a  WAR?  War  is  not  an  attempt  to  kill, 


RICHARD  HENRY  DANA,  JR. 

to  destroy;  but  it  is  coercion  for  a  purpose.  When  a 
/'nation  goes  into  war,  she  does  it  to  secure  an  end,  and 
\fhe  war  does  not  cease  until  the  end  is  secured.  A  box 
ing-match,  a  trial  of  strength  or  skill,  is  over  when  one 
party  stops.  A  war  is  over  when  its  purpose  is  secured. 
It  is  a  fatal  mistake  to  hold  that  this  war  is  over,  be 
cause  the  fighting  has  ceased.  [Applause.]  This  war  is 
not  over.  We  are  in  the  attitude  and  in  the  status  of 
war  to-day.  There  is  the  solution  of  this  question. 
Why,  suppose  a  man  has  attacked  your  life,  my  friend, 
in  the  highway,  at  night,  armed,  and  after  a  death- 
struggle,  you  get  him  down  —  what  then?  When  he 
says  he  has  done  fighting,  are  you  obliged  to  release 
him?  Can  you  not  hold  him  until  you  have  got  some 
security  against  his  weapons?  [Applause.]  Can  you 
not  hold  him  until  you  have  searched  him,  and  taken 
his  weapons  from  him?  Are  you  obliged  to  let  him  up 
to  begin  a  new  fight  for  your  life?  The  same  principle 
governs  war  between  nations.  When  one  nation  has 
conquered  another,  in  a  war,  the  victorious  nation 
does  not  retreat  from  the  country  and  give  up  posses 
sion  of  it,  because  the  fighting  has  ceased.  No ;  it  holds 
the  conquered  enemy  in  the  grasp  of  war  until  it  has 
secured  whatever  it  has  a  right  to  require.  [Applause.] 
I  put  that  proposition  fearlessly  —  The  conquering 
{party  may  hold  the  other  in  the  grasp  of  war  until  it  has 
secured  whatever  it  has  a  right  to  require. 

But  what  have  we  a  right  to  require?  We  have  no 
right  to  require  our  conquered  foe  to  adopt  all  our 
notions,  our  opinions,  our  systems,  however  much  we 
may  be  attached  to  them,  however  good  we  may  think 
them;  but  we  have  a  right  to  require  whatever  the 
public  safety  and  public  faith  make  necessary.  [Ap 
plause.]  That  is  the  proposition.  Then,  we  come  to 


THE  "GRASP  OF  WAR"  SPEECH  247 

this :  We  have  a  right  to  hold  the  rebels  in  the  grasp  oi 
war  until  we  have  obtained  whatever  the  public  safety] 
and  the  public  faith  require.  [Applause,  and  cries  of 
"good."]  Is  not  that  a  solid  foundation  to  stand  upon? 
Will  it  not  bear  examination?  and  are  we  not  upon  it 
to-day? 

I  take  up  my  next  question.  We  have  settled  what 
our  just  powers  are.  Need  I  ask  an  audience,  in 
Faneuil  Hall,  what  it  is  that  the  public  safety  and  the 
public  faith  demand  ?  Is  there  a  man  here  who  doubts  ? 
In  the  progress  of  this  war,  we  found  it  necessary  to 
proclaim  the  emancipation  of  every  slave.  [Applause.] 
On  the  first  day  of  January,  1863,  Abraham  Lincoln, 
of  blessed  memory,  declared  the  emancipation  of  every 
slave.  It  was  a  military  act,  not  a  civil  act.  Military 
acts  depend  upon  military  power,  and  the  measure  of 
military  power  is  the  length  of  the  military  arm.  That 
proclamation  of  the  first  of  January  did  not  emanci 
pate  the  slaves,  but  the  military  arm  emancipated 
them,  as  it  was  stretched  forth,  and  made  bare.  [Ap 
plause.]  District  after  district,  region  after  region, 
state  after  state,  have  been  brought  within  the  grasp 
of  the  military  arm,  until  at  last,  to-day,  the  whole 
rebel  territory  lies  within  and  beneath  the  military 
arm.  [Loud  applause.]  Therefore,  in  state  after  state, 
region  after  region,  the  slaves  have  been  emancipated, 
until  at  last,  over  the  whole  country,  every  slave  is 
emancipated.  [Renewed  applause.]  I  would  under 
take  to  maintain,  before  any  impartial  neutral  tri 
bunal  in  Christendom,  the  proposition  that  we  have 
to-day  an  adequate  military  occupation  of  the  whole 
rebel  country,  sufficient  to  effect  the  emancipation  of 
every  slave,  by  admitted  laws  of  war.  Whatever  dif 
ferences  of  opinion  there  may  have  been  as  to  the  man- 


248  RICHARD  HENRY  DANA,  JR. 

ner  in  which  the  proclamation  operated,  there  is  no 
doubt  left  as  to  the  result;  because  we  have  all  the 
ground  the  slaves  have  stood  upon  within  our  military 
occupation. 

The  slaves  are  emancipated.  In  form,  this  is  true. 
But  the  public  faith  stands  pledged  to  them,  that  they 
and  their  posterity  forever  shall  have  a  complete  and 
perfect  freedom.  [Prolonged  applause.]  Not  merely 
our  safety;  no,  the  PUBLIC  FAITH  is  pledged  that  every 
man,  woman,  and  child  of  them,  and  their  posterity 
forever,  shall  have  a  complete  and  perfect  freedom. 
[Applause.]  Do  you  mean  to  "palter  with  them  in  a 
double  sense"?  Are  you  willing  that  the  great  repub 
lic  shall  cheat  these  poor  negroes,  "keeping  the  word 
of  promise  to  the  ear,  and  breaking  it  to  the  hope"? 
f  Then,  how  shall  we  secure  to  them  a  complete  and  per 
fect  freedom?  The  constitution  of  every  slave  state 
is  cemented  in  slavery.  Their  statute-books  are  full 
of  slavery.  It  is  the  corner-stone  of  every  rebel  state. 
If  you  allow  them  to  come  back  at  once,  without  con 
dition,  into  the  exercise  of  all  their  state  functions, 
what  guaranty  have  you  for  the  complete  freedom  of 
the  men  you  have  emancipated?  There  must,  there 
fore,  not  merely  be  an  emancipation  of  the  actual,  liv 
ing  slaves,  but  there  must  be  an  abolition  of  the  slave 
system.  [Applause.]  Every  state  must Tmve  the  abo 
lition  of  slavery  in  its  constitution,  or  else  we  must 
have  the  amendment  of  the  Constitution  ratified  by 
three  fourths  of  the  states.  Yes,  that  little  railroad- 
ridden  republic,  New  Jersey,  must  be  shamed  into 
adopting  the  amendment  to  the  Constitution.  [Ap 
plause.]  New  Jersey,  whose  vote,  seventy  years  ago, 
alone  prevented  the  adoption  of  Jefferson's  great 
ordinance,  making  subsequently  acquired  territories 


THE  "GRASP  OF  WAR"  SPEECH  249 

free,  and  which  now  stands  alone  among  the  free 
states  against  this  proposition  of  amendment,  must 
be  shamed  into  its  adoption.  [Renewed  applause.] 
Louisiana  will  adopt  it  before  her;  Kentucky,  perhaps, 
may  adopt  it  before  her.  They  may  come  into  the 
kingdom,  when  the  children  of  the  kingdom  shut 
themselves  out.  [Applause.] 

But,  my  fellow  citizens,  is  that  enough?  Is  it  enough 
that  we  have  emancipation  and  abolition  uponjhe 
statute-books?  In  some  states  of  society,  I  should  say 
yes.  In  ancient  times,  when  the  slaves  were  of  the 
same  race  with  their  masters,  when  the  slaves  were 
poets,  orators,  scholars,  ministers  of  state,  merchants, 
and  the  mothers  of  kings,  —  if  they  were  emancipated, 
nature  came  to  their  aid,  and  they  reached  an  equality 
with  their  masters.  Their  children  became  patricians. 
But,  my  friends,  this  is  a  slavery  of  race;  it  is  a  slav 
ery  which  those  white  people  have  been  taught,  for 
thirty  years,  is  a  divine  institution.  I  ask  you,  has  the 
Southern  heart  been  fired  for  thirty  years  for  nothing? 
Have  these  doctrines  been  sown,  and  no  fruit  reaped? 
Have  they  been  taught  that  the  negro  is  not  fit  for 
freedom,  have  they  believed  that,  and  are  they  con 
verted  in  a  day?  Besides  all  that,  they  look  upon  the 
negro  as  the  cause  of  their  defeat  and  humiliation.  I 
am  afraid  there  is  a  feeling  of  hatred  toward  the  negro 
at  the  South  to-day  which  has  never  existed  before. 

What  are  their  laws?  Why,  their  laws,  many  of 
them,  do  not  allow  a  free  negro  to  live  in  their  states. 
When  we  emancipated  the  slaves,  did  we  mean  they 
should  be  banished  —  is  that  it?  [Voices  —  "No."] 
Is  that  keeping  public  faith  with  them?  And  yet  their 
laws  declare  so,  and  may  declare  it  again. 

That  is  not  all !  By  their  laws  a  black  man  cannot 


250  RICHARD  HENRY  DANA,  JR. 

testify  in  court;  by  their  laws  he  cannot  hold  land; 
by  their  laws  he  cannot  vote.  Now,  we  have  got  to 
choose  between  two  results.  With  these  four  millions 
of  negroes,  either  you  must  have  four  millions  of  dis 
franchised,  disarmed,  untaught,  landless,  thriftless, 
non-producing,  non-consuming,  degraded  men,  or  else 
you  must  have  four  millions  of  land-holding,  industri 
ous,  arms-bearing,  and  voting  population.  [Loud  ap 
plause.]  Choose  between  these  two!  Which  will  you 
have?  It  has  got  to  be  decided  pretty  soon  which  you 
will  have.  The  corner-stone  of  those  institutions  will 
not  be  slavery,  in  name,  but  their  institutions  will  be 
built  upon  the  mud-sills  of  a  debased  negro  population. 
Is  that  public  safety?  Is  it  public  faith?  Are  those 
republican  ideas  or  republican  institutions?  Some  of 
these  negroes  have  shed  their  blood  for  us  upon  the 
public  faith.  Ah !  there  are  negro  parents  whose  chil 
dren  have  fallen  in  battle;  there  are  children  who  lost 
fathers,  and  wives  who  lost  husbands,  in  our  cause. 
Our  covenant  with  the  freedman  is  sealed  in  blood! 
It  bears  the  image  and  superscription  of  the  republic ! 
Their  freedom  is  a  tribute  which  we  must  pay,  not  only 
to  Caesar,  but  to  God!  [Applause.] 

We  have  a  right  to  require,  my  friends,  that  the 
freedmen  of  the  South  shall  have  the  right  to  hold 
land.  [Applause.]  Have  we  not?  We  have  a  right  to 
require  that  they  shall  be  allowed  to  testify  in  the 
state  courts.  [Applause.]  Have  we  not?  We  have  a 
right  to  demand  that  they  shall  bear  arms  as  soldiers 
in  the  militia.  [Applause.]  Have  we  not?  We  have  a 
right  to  demand  that  there  shall  be  an  impartial  bal 
lot.  [Great  applause.] 

Now,  my  friends,  let  us  be  frank  with  one  another. 
On  what  ground  are  we  going  to  put  our  demand  for 


THE  "GRASP  OF  WAR"  SPEECH  251 

the  ballot  for  freedmen?  Some  persons  may  say  that 
they  will  put  it  upon  the  ground  that  every  human 
being  has  an  absolute  and  unconditional  right  to  vote. 
There  never  was  any  such  doctrine !  We  do  not  mean, 
now,  to  allow  about  one  half  the  South  to  vote. 
[Applause.]  Why  not?  Why,  the  public  safety  does 
not  admit  of  it.  [Applause.]  We  put  the  condition  of 
loyalty  on  every  vote.  [Applause.]  How  have  we  done 
in  this  state?  Half  the  people  in  this  state  are  ex 
cluded  from  the  ballot,  —  the  better  half  we  are  fond 
of  calling  them;  no  woman  votes.  We  prescribe  con 
ditions  for  the  men,  —  whatever  conditions  society 
sees  fit;  conditions  of  age;  conditions  of  residence;  con 
ditions  of  tax-paying;  and  lately  we  have  added,  by 
a  large  popular  majority,  the  further  high  condition, 
that  they  shall  have  intelligence  enough  to  read  and 
write.  [Applause.]  Of  course  there  is  no  such  doctrine 
as  that  every  human  being  has  a  right  to  vote.  Soci 
ety  must  settle  the  right  to  a  vote  upon  this  principle 
—  "The  greatest  good  of  the  greatest  number"  must 
decide  it.  The  greatest  good  of  society  must  decide  it. 
On  what  ground,  then,  do  we  put  it?  We  put  it  upon 
the  ground  that  the  public  safety  and  the  public  faith 
require  that  there  shall  be  no  distinction  of  color. 
[Applause.]  That  is  the  ground  upon  which  it  can 
stand. 

To  introduce  the  free  negroes  to  the  voting  f ranchiae 
is  a  revolution.  //  we  do  not  secure  that  now,  in  the 
time  of  revolution,  it  can  never  be  secured,  except  by  a 
new  revolution.  [Loud  applause.]  Do  you  want,  some 
years  hence,  to  see  a  new  revolution?  —  the  poor,  op 
pressed,  degraded  black  man,  bearing  patiently  his 
oppression,  until  he  can  endure  it  no  longer,  rising 
with  arms  for  his  rights  —  do  you  want  to  see  that? 


RICHARD  HENRY  DANA,  JR. 

[Voices' — "No."]  Do  you  want  to  see  them  submit  for 
ever,  and  not  rise  for  their  rights?  [Voices  —  "No."] 
No,  neither,  you  say.  Well,  my  friends,  who  cry  "no," 
if  either  of  those  things  happens,  it  is  our  fault.  If 
they  never  get  their  rights,  or  get  them  by  a  new  revo 
lution,  it  will  be,  in  either  event,  our  fault.  Do  you 
wish  to  have  that  blame  rest  upon  you?  [Voices  — 
"No."]  No?  Then  "Now's  the  day,  and  now 's  the 
hour."  [Loud  applause.]  They  are  in  a  condition  of 
transition;  a  condition  of  revolution;  seize  the  oppor 
tunity  and  make  it  thorough !  [Renewed  and  hearty 
applause.] 

This,  then,  fellow  citizens,  is  what  we  have  a  right  to 
demand.  Now  comes  my  third  question  —  How  do 
you  propose  to  accomplish  it?  We  know  our  powers, 
we  know  what  we  want  to  do,  —  how  do  we  propose 
to  do  it?  First,  the  right  to  bear  arms,  fortunately, 
does  not  depend  upon  the  decision  of  any  state.  That 
is  a  matter  which,  under  the  Constitution,  depends 
upon  the  acts  of  Congress.  Congress  makes  the  militia, 
and  Congress  must  see  to  it  that  the  emancipated 
slaves  have  the  privilege,  the  dignity,  and  the  power 
of  an  arms-bearing  population.  But  the  right  to  ac- 
jauire  a  homestead,  the  right  to  testify  in  courts,  the 
right  to  vote,  by  the  Constitution,  depend,  not  only 
in  spirit,  but  in  the  letter,  upon  the  state  constitu 
tions.  The  right  to  vote  in  national  elections  depends 
on  state  constitutions.  What  are  you  going  to  do 
about  it? 

You  find  the  answer  in  my  first  proposition.  We 
are  in  a  state  of  war.  We  are  exercising  war  powers. 
We  hold  each  state  in  the  grasp  of  war  until  the  state 
does  what  we  have  a  right  to  require  of  her.  [Applause.] 
Do  you  say  this  is  coercion?  Certainly  it  is.  War  is 


THE  "GRASP  OF  WAR"  SPEECH  253 

coercion,  and  this  is  part  of  the  war.  We  have  a  mili 
tary  occupation.  What  is  the  effect  of  that?  I  appeal 
to  the  learned  in  the  law  of  nations;  I  appeal  to  an 
authority  that  has  spoken  to  you  words  of  wisdom 
this  morning  [turning  to  Professor  Parsons],  whether 
it  is  not  a  principle  of  war  that  when  the  conquering 
party  has  a  military  occupation  of  the  country,  the 
political  relations  of  its  citizens  are  suspended  thereby? 
That  is  true:  suspended;  I  do  not  say  destroyed. 

Let  no  man  say  that  I  overlook  the  distinction  be 
tween  a  civil  or  domestic  war  and  a  war  between  re 
cognized  nations.  My  duties  and  studies  and  thoughts 
have  kept  my  attention  upon  that.  We  have  not  been 
putting  down  an  insurrection  of  professed  citizens. 
We  have  fought  against  an  empire  unlawfully  estab 
lished  within  the  limits  of  this  republic  —  a  completed 
de  facto  government,  perfected  in  all  its  parts;  and  if 
we  had  not  destroyed  it  by  war,  it  would  have  re 
mained  and  stood  a  completed  government.  It  stood 
or  fell,  on  the  issues  of  war.  Nothing  but  war  has 
destroyed  it. 

This  de  facto  empire  had  possession  of  that  whole 
country.  Why,  from  the  Potomac  to  the  Rio  Grande, 
we  had  not  one  fort;  not  one  arsenal;  not  a  court-house 
nor  a  custom-house,  nor  a  light-house,  nor  a  post-office, 
nor  a  single  magistrate,  nor  a  spot  on  which  he  could 
stand.  They  had  forts,  arsenals,  light-houses,  custom 
houses,  courts,  post-offices,  magistrates,  and  were  in 
complete  possession.  It  happened  —  it  happened  — 
that  those  people  preserved  their  state  lines —  did  not 
obliterate  them;  but  they  might  have  done  so.  It  hap 
pened  that  they  did  not  change  their  constitutions, 
but  they  might  have  done  it.  They  might  have  re 
solved  themselves  into  a  consolidated  republic,  or  a 


254  RICHARD  HENRY  DANA,  JR. 

monarchy.  They  did  as  they  chose.  Under  such  cir 
cumstances,  if  the  parent  government  is  not  strong 
enough  to  hold  possession  of  the  country,  and  a  hos 
tile,  de  facto  government  is  established  upon  it,  the 
parent  government  proportionately  loses  its  claims  to 
allegiance,  for  the  time.  Certainly  it  does  —  not  ab 
solutely,  but  for  the  time. 

What  follows  from  all  this?  from  a  war  fought  over 
the  continent  and  over  every  ocean,  —  their  priva 
teers  vexing  our  commerce  at  the  antipodes ;  we  fight 
ing  the  battles  of  the  republic  in  the  mouth  of  the 
British  Channel  [applause] ;  and  over  this  whole  vast 
republic,  south  of  the  Potomac  and  the  Ohio, 

"Every  turf  beneath  your  feet 
Has  been  a  soldier's  sepulchre." 

If  such  a  war  leaves  this  people  just  as  they  were  be 
fore;  if  no  corresponding  rights  and  powers  have  ac 
crued  to  us,  then  I  say  it  has  been  the  most  vast  and 
bloody  and  cruel  nullity  that  the  world  ever  saw.  It 
is  not  so.  We  have  a  right  now  and  a  duty  to  execute 
those  powers  which  belong  to  the  condition  of  war. 
The  political  relations  of  these  people  to  their  state 
governments  are  suspended.  Military  occupation 
exists,  and  the  republic  governs  them  by  powers  de 
rived  from  war.  You  look  in  vain  to  the  Constitution 
to  point  out  what  shall  be  done.  The  war  is  constitu 
tional;  but  the  consequences,  powers  and  duties,  arise 
out  of  the  nature  of  things.  The  Constitution  may  dis 
tribute  functions,  but  all  the  powers  which  the  Presi 
dent  or  Congress  hold,  or  both,  and  are  exercising,  are 
derived  from  the  condition  of  war. 

I  ask,  again,  how  shall  we  obtain  what  we  have  a 
right  to  acquire?  The  changes  we  require  are  changes 
of  their  constitutions,  are  they  not?  The  changes  must 


THE  "GRASP  OF  WAR"  SPEECH  255 

be  fundamental.  The  people  are  remitted  to  their 
original  powers.  They  must  meet  in  conventions  and 
form  constitutions,  and  those  constitutions  must  be 
satisfactory  to  the  republic.  [Loud  applause.] 

I  desire  at  this  point  to  say  a  word  with  reference  to 
President  Johnson  and  his  course,  to  which  I  ask  your 
special  attention.  When  President  Johnson  called  the 
people  of  North  Carolina  and  one  or  two  other  states 
together,  he  did  not  call  the  blacks  asw^ell  as  the  whites 
to  the  ballot.  That  was  a  question  of  process,  which 
requires  great  discretion  and  wisdom.  The  President 
and  his  Cabinet  knew  a  great  deal  more  about  the  de 
tails,  and  means,  and  probable  results,  than  we  do.  I 
believe  President  Johnson  has  the  same  end  in  view 
that  we  have  here  to-day.  [Applause.]  He  has  his  own 
mode  of  reaching  it.  Some  may  ask,  Why  did  he  not 
ask  the  blacks  to  vote?  I  know  nothing,  personally,  of 
his  reasons;  but  I  can  easily  see  that  two  embarrass 
ments  might  well  beset  him.  They  occur  to  us  all,  at 
once. 

The  people  of  those  states  are  to  vote  for  the  pur 
pose  of  making  their  organic  law.  President  Johnson 
holds  them  by  military  power.  Is  it  not  a  very  serious 
thing,  in  a  republican  government,  to  dictate  from  the 
cannon's  mouth  the  organic  law  for  a  great  people?  I 
do  not  ask  what  we  have  a  right  to  do  —  that  is  not 
the  question.  The  question  is,  Wliat  ought  we  to  do? 
I  do  not  wonder  that  a  man  educated  in  republican 
principles  hesitates  to  dictate,  as  military  superior, 
who  should  vote  in  determining  the  organic  law  of  a 
people.  He  took  the  voters  as  they  stood  before  the 
war;  he  put  the  test  of  loyalty  to  them;  he  took  securi 
ties  against  them;  he  went  no  further.  That  we  may 
well  suppose  was  one  of  his  reasons. 


256  RICHARD  HENRY  DANA,  JR. 

We  can  easily  suppose  another.  Take  the  whole 
black  population.  Shall  I  say  to  you,  my  friends,  to 
day,  for  the  first  time,  that  slavery  is  a  beneficent, 
effective  educational  system?  If  I  say  it,  will  you  be 
lieve  it?  Will  you  think  me  sane?  Have  we  not  all 
said,  and  thought,  and  fought  because  we  believed 
that  slavery  degraded  and  brutalized  its  victims?  If 
a  man  requires  us  to  say  that  the  four  millions  of 
slaves  have  not  been  debased  and  brutalized  by  slav 
ery,  he  requires  us  to  unsay  all  we  have  said  and  be 
lieved  and  fought  for  and  prayed  for,  the  last  thirty 
years.  Slavery  has  degraded  the  negroes.  It  has  kept 
them  ignorant  and  debased.  It  has  not,  thank  God, 
destroyed  them.  The  germ  of  moral  and  intellectual 
life  has  survived;  and  we  mean  to  see  to  it  that  they 
are  built  up  into  a  self-governing,  voting,  intelligent 
population.  [Applause.]  They  are  not  that  to-day. 
They  will  become  so  quicker  than  you  think.  They  do 
not  need  half  the  care  nor  half  the  patronage  we  used 
to  think  they  did.  And  the  ballot  is  a  part  of  our  edu 
cating  and  elevating  process. 

There  are  various  courses,  all  seeming  to  lead  to  one 
point.  From  these,  President  Johnson  has  chosen  to 
make  an  experimental,  tentative  trial  of  one.  On  a 
question  of  means  and  processes,  he  has  declined  to 
clothe  the  negroes,  by  an  exercise  of  military  power, 
with  the  right  to  vote.  True,  he  has  by  military  power 
applied  a  test  of  loyalty  to  the  voters.  But  that  is  a 
very  mild  and  a  necessary  exercise  of  military  power. 
No  man,  I  believe,  questions  the  necessity  and  fitness 
of  that  act.  But  it  is  a  far  different  thing  to  speak  a 
whole  nation  of  voters  into  existence  —  not  for  tem 
porary,  but  for  permanent  and  fundamental  objects 
—  by  a  stroke  of  his  pen,  or  rather,  I  should  say,  by 


THE  "GRASP  OF  WAR"  SPEECH  257 

the  uplifted  sword.  His  rule  has  not  been  to  interfere 
as  far  as  he  could,  but  to  accomplish  his  ends  with  the 
least  possible  interference. 

One  step  further.    Suppose  the  states  do  not  do 
what  we  require  —  what  then?  I  have  not  heard  that 
question  answered  yet.   Suppose  President  Johnson's 
experiment  in  North  Carolina  and  Mississippi  fails, 
and  the  white  men  are  determined  to  keep  the  black 
men  down  —  what  then?    Mr.  President,  I  hope  we 
shall  never  be  called  upon  to  answer,  practically,  that 
question.   It  remits  us  to  an  ultimate,  and,  you  may 
say,  a  fearful  proposition.  But  if  we  come  to  it,  though 
I  desire  to  consider  myself  the  humblest  of  the  persons 
here,  I,  for  one,  am  prepared  with  an  answer.  I  believe 
that  if  you  come  to  the  ultimate  right  of  the  thing,  the 
ultimate  law  of  the  case,  it  is  this :  that  this  war  —  no, 
not  the  war,  the  victory  in  the  war  —  places,  not  the 
person,  not  the  life,  not  the  private  property  of  the 
rebels  —  they  are  governed  by  other  considerations 
and  rules  —  I  do  not  speak  of  them  —  but  the  political 
systems  of  the  rebel  states,  at  the  discretion  of  the  repub 
lic.    [Great  applause.]    Secession  does  not  do  this. 
Treason  does  not  do  this.    The  existence  of  civil  war 
does  not  do  this.   It  is  the  necessary  result  of  con 
quest,  with  military  occupation,  in  a  war  of  such 
dimensions,  such  a  character,  and  such  consequences 
as  this. 

You  say  that  it  is  a  fearful  proposition.  But  be  not 
alarmed.  Most  political  action  is  discretionary,  — 
all  that  is  fundamental  and  organic  is  so.  Discretion 
has  its  laws,  and  even  its  necessities.  Still,  I  know  it 
is  a  fearful  proposition.  But  is  not  war  a  fearful  fact? 
If  this  is  a  fearful  theory,  is  it  not  the  legitimate  fruit 
of  a  terrific  fact,  the  war?  If  they  have  sown  the  wind, 


258  RICHARD  HENRY  DANA,  JR. 

must  they  not  expect  to  reap  the  whirlwind?  War,  my 
(friends,  is  an  appeal  from  the  force  of  law  to  the  law 
of  force.  I  declare  it  a  proposition  that  does  not  ad 
mit  of  doubt  in  wars  between  nations,  that  when  a 
conqueror  has  obtained  military  possession  of  his  ene 
my's  country,  it  is  in  his  discretion  whether  he  shall 
permit  the  political  institutions  to  go  on  and  treat 
with  them,  or  shall  obliterate  them  and  annex  the 
country  to  his  own  dominions.  That  is  the  law  of  war 
between  nations.  Is  it  applicable  to  us?  I  think  it  is. 
[Applause.]  I  think,  if  you  come  to  the  ultimate  right 
of  the  thing,  we  may,  if  we  choose,  take  the  position 
that  their  political  institutions  are  at  the  discretion  of 
the  republic. 

When  a  man  accepts  a  challenge  to  a  duel,  what 
does  he  put  at  stake?  He  puts  his  life  at  stake,  does  he 
not?  And  is  it  not  childish,  after  the  fatal  shot  is 
fired,  to  exclaim,  "Oh,  death  and  widowhood  and  or 
phanage  are  fearful  things!"  They  were  all  involved 
in  that  accepted  challenge.  When  a  nation  allows  it 
self  to  be  at  war,  or  when  a  people  make  war,  they  put 
at  stake  their  national  existence.  [Applause.]  That 
result  seldom  follows,  because  the  nation  that  is  get 
ting  the  worst  of  the  contest  makes  its  peace  in  time; 
because  the  conquering  nation  does  not  always  desire 
to  incorporate  hostile  subjects  in  its  dominions;  be 
cause  neutral  nations  intervene.  The  conqueror  must 
choose  between  two  courses  —  to  permit  the  political 
institutions,  the  body  politic,  to  go  on,  and  treat  with 
it,  or  obliterate  it.  We  have  destroyed  and  obliterated 
their  central  government.  Its  existence  was  treason. 
As  to  their  states,  we  mean  to  adhere  to  the  first 
course.  We  mean  to  say  the  states  shall  remain,  with 
new  constitutions,  new  systems.  We  do  not  mean  to 


THE  "GRASP  OF  WAR"  SPEECH  259 

exercise  sovereign  civil  jurisdiction  over  them  in  our 
Congress.  Fellow  citizens,  it  is  not  merely  out  of  ten 
derness  to  them ;  it  would  be  the  most  dangerous  pos 
sible  course  for  us.  Our  system  is  a  planetary  system: 
each  planet  revolving  round  its  orbit,  and  all  round  a^v* 
common  sun.  This  system  is  held  together  by  a  bal^ 
ance  of  powers  —  centripetal  and  centrifugal  forces. 
We  have  established  a  wise  balance  of  forces.  Let  not 
that  balance  be  destroyed.  If  we  should  undertake  to 
exercise  sovereign  civil  jurisdiction  over  those  states, 
it  would  be  as  great  a  peril  to  our  system  as  it  would  be 
a  hardship  upon  them.  We  must  not,  we  will  not  un 
dertake  it,  except  as  the  last  resort  of  the  thinking  and 
the  good  —  as  the  ultimate  final  remedy,  when  all 
others  have  failed. 

I  know,  fellow  citizens,  it  is  much  more  popular  to 
stir  up  the  feelings  of  a  public  audience  by  violent  lan 
guage  than  it  is  to  repress  them ;  but  on  this  subject  we 
must  think  wisely.  We  have  never  been  willing  to  try 
the  experiment  of  a  consolidated  democratic  republic. 
Our  system  is  a  system  of  states,  with  central  powerj 
and  in  that  system  is  our  safety.  [Applause.]  State 
rights,  I  maintain;  State  sovereignty  we  have  de-- 
stroyed.  [Applause.]  Therefore,  although  I  say  that, 
if  we  are  driven  to  the  last  resort,  we  may  adopt  this 
final  remedy;  yet  wisdom,  humanity,  regard  for  demo 
cratic  principles,  common  discretion,  require  that  we 
should  follow  the  course  we  are  now  following.  Let 
the  states  make  their  own  constitutions,  but  the  con 
stitutions  must  be  satisfactory  to  the  Republic  [ap 
plause],  and  —  ending  as  I  began  —  by  a  power  which 
I  think  is  beyond  question,  the  Republic  holds  them 
in  the  grasp  of  war  until  they  have  made  such  con 
stitutions.  [Loud  applause.] 


260  RICHARD  HENRY  DANA,  JR. 

THE  FANEUIL  HALL  ADDRESS 

[Omitting  portions  that  appear  in  almost  the  same 
language  in  Mr.  Dana's  speech.] 

To  THE  PEOPLE  OF  THE  UNITED  STATES  :  — 

In  pursuance  of  the  custom  of  the  American  people 
to  confer  freely  with  one  another  in  times  of  civil 
emergency,  and  the  example  of  our  own  ancestors  to 
speak  to  their  fellow  citizens  from  this  place,  we  have 
been  commissioned  by  the  citizens  this  day  assembled 
in  Faneuil  Hall  to  address  you  upon  the  state  of  pub 
lic  affairs. 

We  claim  no  peculiar  right  to  be  heard,  even  by 
reason  of  the  sacredness  of  the  spot  from  which  we 
speak;  but  the  greatness  of  the  exigency,  the  critical 
questions  your  representatives  in  Congress  will  soon 
be  required  to  meet,  and  the  singular  unanimity 
which  appears  among  the  patriotic  people  in  this  por 
tion  of  our  land,  lead  us  to  hope  for  your  attention 
and  consideration. 

To  remove  obstructions  which  we  know  may  be 
artfully  thrown  in  the  way,  we  wish  to  say  to  you  in 
advance  —  as  matter  of  honor  between  citizens  — 
that  this  meeting  and  this  address  have  not  been 
prompted  by  any  organization,  or  by  any  purpose 
of  party  or  personal  politics.  They  are  the  sponta 
neous  expression  of  the  convictions  of  men  in  earnest, 
who  have  differed  much  in  times  past,  and  may  be 
separated  again  in  their  political  action,  but  who  are 
forced  to  a  common  opinion  on  the  present  exigency 
of  affairs. 

It  may  be  fairly  said  that  three  ideas  had  complete 
possession  of  Southern  society,  —  Slavery,  Aristo- 


THE  "GRASP  OF  WAR"  SPEECH  261 

cracy,  and  State  Supremacy.  Upon  these,  they  carried 
on  their  political  warfare,  until  1860.  On  these,  they 
founded  their  empire  in  1861.  On  these,  and  for  these, 
they  have  waged  against  the  Republic  for  four  years 
a  war,jof  stupendous  proportions. 

That  we  may  understand  the  character  of  this 
antagonistic  force,  with  which  we  have  now  to  deal 
politically,  we  ask  you  to  remember  what  they  accom 
plished.  They  made  no  insurrection  of  professed  citi 
zens  for  a  redress  of  grievances.  They  made  no  revo 
lution  or  civil  war  within  an  admitted  sovereignty. 
They  set  up  a  distinct  and  independent  sovereignty, 
within  the  territory  of  the  Republic.  This  extended 
over  eleven  states,  and  we  hardly  saved  our  capital; 
while  in  the  states  of  Maryland,  Kentucky,  and  Mis 
souri,  the  most  the  nation  obtained  at  first  was  a  de 
claration  of  sovereign  neutrality.  Looking  at  the  fact, 
and  not  at  right  or  law,  we  must  remember  that  the 
rebellion  drove  out  from  its  usurped  borders  every 
representative  and  obliterated  every  sign  of  Federal 
authority,  possessed  every  foot  of  ground,  and  estab 
lished  and  put  in  operation  a  central  government,  com 
pleted  in  all  its  parts,  legislative,  executive,  and  judi 
cial. 

In  the  course  of  a  war  of  four  years,  for  the  restora 
tion  of  the  Republic,  we  must  not  forget  that  not  one 
place  surrendered  from  political  considerations.  There 
were  individual  deserters,  but  not  a  regiment  laid 
down  its  arms  from  motives  of  returning  loyalty. 
They  fought  to  the  last,  —  as  bitterly  at  last  as  ever, 
—  and  were  surrendered  by  their  commanders  only 
when  there  was  no  other  resource.  It  was  by  force  that 
their  government  was  broken  down.  It  is  by  force  that 


262  RICHARD  HENRY  DANA,  JR. 

the  territory  they  held  is  now  in  our  military  occupa 
tion.  .  .  .  The  purpose  of  the  South  now  is  to  resume 
the  exercise  of  state  functions  with  the  utmost  pos 
sible  speed,  and  with  the  least  possible  change  in  their 
home-systems.  To  secure  that,  they  will  do  and  sub 
mit  to  whatever  is  necessary.  It  must  constantly  be 
borne  in  mind  that  when  once  a  state  is  admitted  to 
its  place,  the  power  of  the  nation  over  all  subjects  of 
state  cognizance  is  gone.  If  the  dogma  of  State  Su 
premacy  is  not  destroyed,  for  practice  as  well  as  in 
theory,  the  war  will  have  been  in  vain.  It  has  not  only 
been  the  favorite  weapon  of  slavery,  but  has  been 
eagerly  caught  up  by  the  enemies  of  our  institutions 
in  Europe,  -  -  the  tenet  that  the  United  States  is  not 
a  nation,  a  government,  a  sovereignty ,-- that  the 
citizens  owe  to  it  no  direct  allegiance,  —  that  they 
cannot  commit  against  it  the  crime  of  treason,  if  they 
carry  with  them  into  their  treason  the  forms  of  state 
authority.  The  right  of  this  republic  to  be  a  sovereign, 
among  the  sovereignties  of  the  earth,  must  be  put  beyond 
future  dispute,  abroad  as  well  as  at  home.  We  have  paid 
the  fearful  price,  and  we  must  not  be  defrauded  of  the 
results. 

Let  us  now,  fellow  citizens,  look  at  the  dangers 
which  attend  an  immediate  restoration  of  the  rebel 
states  to  the  exercise  of  full  state  authority.  Slavery 
is  the  law  of  every  rebel  state.  In  some  of  these 
states  free  persons  of  color  are  not  permitted  to  reside; 
in  none  of  them  have  they  the  right  to  testify  in  court, 
or  to  be  educated,  in  few  of  them  to  hold  land,  and  in 
all  of  them  they  are  totally  disfranchised.  But,  far 
beyond  the  letter  of  the  law,  the  spirit  of  the  people 
and  the  habits  of  generations  are  such  as  to  insure  the 
permanence  of  that  state  of  things,  in  substance. 


THE  "GRASP  OF  WAR"  SPEECH  263 

We  trust  it  cannot  be  necessary  to  pause  here  and 
refute  a  political  fallacy,  which  the  logic  of  events  has 
already  exposed.  It  has  been  contended  that,  forcible 
resistance  having  ceased,  the  rebel  states  are,  by  that 
fact,  again  in  their  orbits,  and  in  the  rightful  pos 
session  and  exercise  of  all  their  functions  as  states,  in 
local  and  national  affairs,  just  as  if  no  war  had  taken 
place,  —  that  the  nation,  whether  by  Congress  or  the 
Executive,  has  no  option  to  exercise,  no  powers  or 
rights  to  enforce,  no  conditions  that  it  can  make.  We 
trust  that  the  mere  statement  of  this  proposition,  in 
the  light  of  the  circumstances  in  which  we  stand,  is 
a  sufficient  refutation.  We  are  holding  the  rebel  coun 
try  in  military  occupation,  and  the  nation  is  asserting 
a  right,  before  it  yields  that  occupation,  to  see  the 
public  safety  secured,  and  the  public  faith  preserved. 
The  only  question  can  be  as  to  the  mode  of  obtaining 
this  result.  We  trust  all  loyal  people  of  the  land  will 
have  no  hesitation  in  standing  by  the  President,  with 
clear  convictions,  as  well  as  strong  purpose,  on  this 
issue.  By  necessity,  the  Republic  must  hold  an\l 
exercise  some  control  over  these  regions  and  peopli 
until  the  states  are  restored  to  their  full  function^ 
as  states,  in  national  as  well  as  in  state  affairs.  This 
authority  is  to  be  exercised  by  the  President  or  by 
Congress,  or  both,  according  to  the  nature  of  each 
case.  Though  resulting,  necessarily,  from  the  fact  of 
the  war,  these  powers  are  not  necessarily  to  be  exer 
cised  by  military  persons  or  in  military  forms.  This 
temporary,  provisional  authority,  although  supreme 
for  the  time,  may  be  exercised,  much  of  it,  by  civil 
officers,  using  the  methods  of  civil  power,  and  admit 
ting  the  employment  of  judicial  and  executive  func 
tions,  with  the  arts  and  business  and  social  inter- 


264  RICHARD  HENRY  DANA,  JR. 

course  of  life.  This  we  understand  to  be,  in  substance, 
the  position  which  the  government  now  occupies,  and 
we  believe  the  people  recognize  it  to  be  of  necessity 
and  of  right. 

Let  us  now,  fellow  citizens,  turn  our  attention  to 
our  rights  and  duties.  Having  succeeded  in  this  war, 
and  holding  the  rebel  states  in  our  military  occupa 
tion,  it  is  our  right  and  duty  to  secure  whatever  the  public 
safety  and  the  public  faith  require. 

First.  The  principle  must  be  put  beyond  all  ques 
tion,  that  the  Republic  has  a  direct  claim  upon  the 
allegiance  of  every  citizen,  from  which  no  state  can 
absolve  him,  and  to  his  obedience  to  the  laws  of  the 
Republic,  "anything  in  the  constitution  or  laws  of 
any  state  to  the  contrary  notwithstanding." 

Second.  The  public  faith  is  pledged  to  every  person 
of  color  in  the  rebel  states,  to  secure  to  them  and  their 
posterity  forever  a  complete  and  veritable  freedom. 
Having  promised  them  this  freedom,  received  their 
aid  on  the  faith  of  this  promise,  and,  by  a  successful 
war  and  actual  military  occupation  of  the  country, 
having  obtained  the  power  to  secure  the  result,  we 
are  dishonored  if  we  fail  to  make  it  good  to  them. 

Third.  The  system  of  slavery  must  be  abolished 
and  prohibited  by  paramount  and  irreversible  law. 
Throughout  the  rebel  states,  there  must  be,  in  the 
words  of  Webster,  "impressed  upon  the  soil  itself  an 
inability  to  bear  up  any  but  free  men." 

Fourth.  The  systems  of  the  states  must  be  truly 
"republican." 

Unless  these  points  are  secured,  the  public  faith  will 
be  broken,  and  there  will  be  no  safety  for  the  public 
peace  or  the  preservation  of  our  institutions. 

It  must  be  remembered  that,  under  the  Constitu- 


THE  "GRASP  OF  WAR"  SPEECH  265 

tion,  most  of  these  subjects  are  entirely  matters  of 
state  jurisdiction.  Once  withdraw  the  powers  of  war, 
and  admit  a  state  to  its  full  functions,  and  the  author 
ity  of  the  nation  over  these  subjects  is  gone.  It  is  a 
state  function  to  determine  who  shall  hold  land,  who 
shall  testify  in  state  courts,  who  shall  be  educated,  and 
how,  who  shall  labor,  and  how,  and  under  what  con 
tracts  or  obligations  and  how  enforced,  and  who  shall 
vote  in  national  as  well  as  in  state  elections.  We  have 
already  said  that  all  these  points  now  stand  in  the  con 
stitutions  and  laws  of  the  rebel  states  decided  against 
the  freedmen.  Action  is  necessary  to  put  them  right. 
So  great  a  change  is,  no  doubt,  fundamental,  and  goes 
to  the  bottom  of  their  social  and  political  system.  If 
it  is  not  made  now,  before  civil  society  becomes  set 
tled,  before  the  states  are  restored  to  the  exercise  of 
all  their  powers,  it  will  never  be  made,  in  all  human 
probability,  by  peaceful  means. 

The  question  now  occurs,  How  are  these  results  to 
be  secured,  before  those  states  are  permitted  to  resume 
their  functions?  We  agree  that  these  results  ought  to 
be  secured  in  conformity  with  what  may  be  called  the 
American  System,  --  that  upon  which  and  for  which 
our  Constitution  was  made.  This  is  a  system  of  sepa 
rate  states,  each  with  separate  functions,  constituted 
by  the  people  of  each,  and  self-governing  within  its 
sphere,  with  a  central  state  constituted  by  the  people 
of  all,  supreme  within  its  sphere  and  the  final  judge 
of  its  sphere  and  functions.  The  President  recognizes 
the  importance  of  proceeding  in  accordance  with  this 
system.  He  aims  at  a  restoration  of  the  states,  by 
the  people  of  the  states,  without  resort  to  the  exer 
cise  of  sovereign  legislative  jurisdiction  over  them  by 
the  general  government.  In  this  we  offer  to  him  our 


266  RICHARD  HENRY  DANA,  JR. 

sympathy,  as  we  ask  for  him  an  intelligent  support. 
But  inasmuch  as  once  restored  the  state  will  be  be 
yond  our  reach,  the  utmost  care  must  be  taken  to 
avoid  a  hasty  and  unsatisfactory  restoration.  We 
acknowledge  that  there  may  be  dangers  in  protracted 
and  extensive  military  occupation.  But  we  believe 
that  the  people  are  willing  to  incur  their  share  of  these 
perils.  We  believe  the  people  feel  that  the  greatest 
hazard  is  in  premature  restoration  fraught  with  future 
danger.  Any  restoration  would  be  dangerous  which 
did  not  secure,  beyond  all  reasonable  peril,  the  abo 
lition  of  slavery,  actual  freedom,  just  rights  to  the 
free,  and,  within  each  state,  "a  republican  form  of 
government." 

The  President  and  his  Cabinet,  we  have  every  rea 
son  to  believe,  have  these  results  in  view.  We  cannot 
doubt  that  Congress  will  refuse  to  receive  any  state 
upon  any  other  terms.  If  there  are  any  members  of 
Congress  whose  fidelity  on  these  points  is  doubtful, 
we  implore  you  to  exercise  over  them  all  the  just  au 
thority  and  influence  of  constituents. 

We  advance  no  extreme  or  refined  theory  as  to  what 
may  be  included  within  the  term  "a  republican  form 
of  government."  In  the  exercises  of  the  extraordinary 
prerogative  of  the  General  Government  to  determine 
whether  a  state  constitution  is  "republican,"  there 
must  be  practical  wisdom  and  no  refined  theories.  If 
the  constitutions  with  which  the  rebel  states  now 
come  are  not  "republican,"  in  such  a  reasonable  and 
practical  sense  as  nations  act  upon  —  if  they  are  so 
far  unrepublican  as  to  endanger  public  peace  and  the 
stability  of  our  institutions,  then  we  may  treat  them 
as  not  "republican  "  in  the  American  sense  of  the  term. 

What,  then,  is  the  character  of  their  present  con- 


THE  "GRASP  OF  WAR"  SPEECH  267 

stitutions,  assuming  that  slavery  is  prohibited?  Here 
presents  itself  no  question  of  mere  principle  or  theory, 
but  facts  of  an  overruling  and  decisive  character. 
From  one  third  to  one  half  of  their  free  population 
are  absolutely  and  forever  not  only  disfranchised,  but 
deprived  of  all  the  usual  rights  of  citizens  in  a  re 
public.  Not  only  so,  but  this  disfranchisement  is  per 
petual,  hereditary,  and  insurmountable.  It  is  more 
deeply  seated  than  Oriental  caste.  It  clings  to  each 
man  and  his  posterity  forever,  if  there  be  a  traceable 
thread  of  African  descent.  No  achievements  in  war 
or  peace,  no  acquisitions  of  property,  no  education, 
no  mental  power  or  culture,  no  merits,  can  overcome 
it.  To  make  the  case  worse,  these  people  are  not 
only  disfranchised,  but  the  temper,  spirit,  and  habits 
of  the  ruling  class,  the  only  class  partaking  of  civil 
authority,  will  keep  them  not  only  disfranchised, 
but  uneducated,  without  land,  without  the  right  to 
testify,  and  without  the  means  of  protecting  their 
formal  freedom.  The  result  has  been,  and  must  ever 
be,  that  the  system  is  essentially  and  practically  oli- 
garchal,  in  such  a  sense  as  actually  and  seriously  to 
endanger  the  public  peace  and  the  success  of  our 
republican  institutions. 

Attempts  are  made  to  embarrass  the  subject  by 
referring  to  several  of  the  free  states,  whose  consti 
tutions  restrict  free  blacks  in  the  exercise  of  some  of 
the  usual  rights  of  citizens.  But  these  are  not  prac 
tical  questions  before  the  country.  The  General  Gov 
ernment  has  no  present  cognizance  of  those  questions 
in  those  states.  Besides,  as  we  have  said,  the  exer 
cise  of  this  extraordinary  authority  must  be  upon 
practical  and  reasonable  grounds,  and  not  on  mere 
theory.  The  partial  disfranchisement  of  people  of 


268  RICHARD  HENRY  DANA,  JR. 

color  in  those  states  we  regard  as  one  of  the  subtle 
effects  of  the  slave-power  in  our  politics,  which  we 
hope  to  see  pass  away  with  its  cause.  The  number  of 
persons  whom  it  bears  upon  is  so  small,  the  effect 
upon  them  so  slight,  and  such  the  state  of  society, 
and  the  habits  and  feelings  of  the  people,  that  the 
substantial  character  of  those  states  as  "republican" 
is  not  sensibly  affected.  Departures  from  principle, 
however  small,  must  always  be  regretted;  but  in  the 
vast  and  critical  affairs  of  nations,  slight  aberrations 
from  exact  principles  are  constantly  occurring,  and 
are  constantly  submitted  to  and  allowed  for,  in  funda 
mental  institutions,  as  well  as  in  occasional  practice. 
The  case  of  the  rebel  states  is  vastly  and  absolutely 
different.  It  presents  a  question  of  a  false  principle 
organized  and  brought  into  action,  with  vast  dimen 
sions,  having  already  created  one  war,  and  all  but  de 
stroyed  the  Republic,  and  ever  threatening  danger 
hereafter.  We  can  hardly  think  it  in  good  faith  that 
the  effort  is  made  to  deter  the  nation  from  confront 
ing  this  vast  peril,  over  which  it  has  present  and 
necessary  jurisdiction,  by  invoking  these  slight  cases 
found  remaining  in  loyal  states,  over  which  the  nation 
has  no  present  cognizance,  and  from  which  it  has 
nothing  to  fear. 

We  do  not  ask  that  the  nation  shall  insist  on  an  un 
conditioned,  universal  suffrage.  We  admit  that  states 
determine  for  themselves  the  principles  upon  which 
they  will  act,  in  the  restrictions  and  conditions  they 
place  upon  suffrage.  All  the  states  make  restrictions 
of  age,  sex,  and  residence,  and  often  annex  other  con 
ditions  operating  in  substance  equally  upon  all,  and 
reasonably  attainable  by  all.  Those  matters  lie  within 
the  region  of  advice  from  neighbors,  and  not  of  na- 


THE  "GRASP  OF  WAR"  SPEECH 

tional  authority.  We  speak  only  to  the  point  where 
the  national  authority  comes  in.  We  cannot  require 
the  rebel  states,  if  we  treat  them  as  states,  to  adopt  a 
system  for  the  sole  reason  that  we  think  it  right.  Of 
that,  each  state,  acting  as  a  state,  must  be  the  judge. 
But  in  the  situation  in  which  the  rebel  states  now  are, 
the  nation  can  insist  upon  what  is  necessary  to  public/ 
safety  and  peace.  And  we  declare  it  to  be  our  belie* 
that  if  the  nation  admits  a  rebel  state  to  its  full  func 
tions  with  a  constitution  which  does  not  secure  to 
the  freedmen  the  right  of  suffrage  in  such  manner 
to  be  impartial  and  not  based  in  principle  upon  col< 
and  as  to  be  reasonably  attainable  by  intelligence  an) 
character,  and  which  does  not  place  in  their  hands 
substantial  power  to  defend  their  rights  as  citizens  aj 
the  ballot-box,  with  the  right  to  be  educated,  to  ac 
quire  homesteads,  and  to  testify  in  courts,  the  nation 
will  be  recreant  to  its  duty  to  itself  and  to  them, 
and  will  incur  and  deserve  to  incur  danger  and  re 
proach  proportioned  to  the  magnitude  of  its  respon 
sibility. 

It  should  not  be  forgotten  that,  slavery  being  abol 
ished,  and  therewith  the  three-fifths  rule  of  the  Con 
stitution,  nearly  two  millions  will  be  added  to  the 
representative  population  of  the  slave  states  in  the 
apportionment  for  members  of  Congress  and  of  votes 
in  presidential  elections,  and  that  this  increase  of  po 
litical  power  to  the  rebel  states  must  be  at  the  expense 
of  the  free  states.  If  the  freedmen  remain,  as  they  now 
are,  disfranchised,  this  increased  power  will  be  wielded 
by  a  class  of  voters  smaller  in  proportion  than  before. 
This  furnishes  an  additional  temptation  to  that  class 
to  retain  it  in  their  hands;  and  we  shall  be  compelled 
to  meet,  as  heretofore,  the  old  spirit,  not  improved  by 


270  RICHARD  HENRY  DANA,  JR. 

its  recent  experience,  and  largely  increased  in  its 
political  power. 

As  we  speak  from  a  free  state,  it  may  be  suggested 
that  we  are  not  so  good  judges  of  what  should  be  done 
for  the  colored  people  of  the  South  as  those  who  have 
been  brought  up  among  them.  It  does  not  follow  that 
those  who  have  been  brought  up  under  an  abuse  are 
the  best  judges  whether  it  shall  be  continued,  or  of 
what  shall  be  substituted  in  its  place.  The  people  of 
the  North  have  seen  the  colored  races  acting  as  free 
men  under  free  institutions,  which  the  people  of  the 
South  have  not.  They  who  have  known  the  man  of 
color  only  as  a  slave  before  his  master,  or  sometimes 
as  a  disfranchised  free  man  under  a  slave  system  em 
bracing  his  race,  are  not  the  only  nor  necessarily  the 
best  qualified  class  to  give  an  opinion  as  to  what  he 
may  do  or  what  should  be  done  for  him  as  a  free  man, 
under  free  systems.  History  teaches  us  that  national 
emancipations  do  not  emanate  from  the  masters.  And 
wherever  emancipation  has  seemed  to  disappoint  ex 
pectations,  the  difficulties  are  traceable,  in  large  meas 
ures,  to  persistent  and  multiform  counteractions  by 
the  late  master-class. 

Appeals  may  be  made  to  taste  or  pride,  on  the  sub 
ject  of  the  social  equality  of  the  people  of  color.  We 
must  not  permit  our  opinions  to  be  warped  by  such 
present  question  is  strictly  one  of 


Political  justice  and  safety,  and  not  of  social  equality. 
^VlTen  the  free  man  of  color,  educated  in  the  common 
schools,  deposits  a  vote  which  he  can  write  himself, 
gives  a  deposition  which  he  can  read  and  sign,  and 
pays  a  tax  on  the  homestead  he  has  bought,  the  law 
forces  no  comparisons  between  his  intellectual,  moral, 
physical,  or  social  condition,  and  that  of  the  white  cit- 


THE  "GRASP  OF  WAR"  SPEECH  271 

izen,  of  whatever  race  or  nation,  who  lives,  votes,  or 
testifies  by  his  side. 

The  President  has  undertaken,  in  certain  of  the  rebel 
states,  an  experiment  for  speedy  restoration.  Recog 
nizing  the  general  policy  and  duty  of  restoration  as 
soon  as  practicable,  the  experiment  commands  our 
earnest  wishes  for  its  success.  By  its  success  we  mean 
—  not  the  return  of  the  states  to  their  position ;  that 
they  are  only  too  ready  to  do;  but  their  return  with] 
constitutions  in  which  the  public  safety  and  public  faith  • 
shall  be  secured.  We  cannot  conceal  our  apprehensions 
that  the  experiment  will  fail.  But  let  not  the  Republic 
fail !  The  more  recent  signs  are  that  the  spirit  which 
caused  the  war  is  preparing  to  fight  over  politically 
the  ground  it  has  lost  in  battle.  This  ought  not  to  sur 
prise  us.  Let  no  haste  to  restore  a  state,  no  fear  of 
rebel  dissatisfaction,  lead  the  Republic  to  compromise 
its  safety  or  its  honor! 

During  the  progress  towards  restoration,  the  nation 
holds  the  states  in  military  occupation,  by  powers 
resulting  necessarily  from  successful  war.  This  hold 
upon  them  is  to  be  continued  until  this  or  some  other 
experiment  does  succeed.  We  need  not  be  precipitate. 
The  present  authority,  although  resulting  from  war, 
may,  as  we  have  said,  be  largely  exercised  by  civil 
methods  and  civil  functionaries,  and  be  accompanied 
with  the  enjoyment  of  many  civil  rights  and  local 
municipal  institutions,  executive  and  judicial.  If  the 
present  experiment  fails,  we  may  try  the  experiment 
of  building  by  the  people  from  the  foundation,  by 
means  of  municipal  institutions  of  towns  and  counties, 
with  the  aid  of  education,  commerce  and  immigration, 
a  new  spirit  being  infused  and  the  people  becoming 
accommodated  to  their  new  relations,  and  so  advance 
gradually  to  complete  restoration. 


272  RICHARD  HENRY  DANA,  JR. 

This  is  but  one  suggestion.  Various  methods  are 
open  to  us.  Only  let  it  be  understood  that  there  is  no 
point  at  which  the  rebels  can  defy,  politically,  any  more 
than  they  could  in  war,  the  authority  of  the  Republic. 
3Fhe  end  the  nation  has  in  view  is  the  same  as  that  for 
/which  the  war  was  accepted  and  prosecuted,  —  the 
I  restoration  of  the  states  to  their  legitimate  relations  with 
\]ie  Republic.  The  condition  of  things  calls  for  no  limi 
tations  of  time  or  methods.  By  whatever  course  of 
reasoning  it  may  be  reached,  upon  whatever  doctrine 
of  public  law  it  may  rest,  however  long  may  be  the 
interval  of  waiting,  and  whatever  may  be  the  process 
resorted  to,  the  friends  and  enemies  of  the  Republic 
should  alike  understand  that  it  has  the  powers  and 
will  use  the  means  to  ensure  a  final  restoration  of 
the  States,  with  constitutions  which  are  republican, 
and  with  provisions  that  shall  secure  the  public  safety 
and  the  public  faith. 


XII 
THE  PRIZE  CAUSES 

[Beginning  with  the  earliest  months  of  the  Civil  War,  the 
United  States  established  a  blockade  of  the  Confederate  ports, 
and  captured  as  prizes  blockade-runners  of  neutrals,  and  also  ves 
sels  belonging  to  citizens  residing  in  the  seceding  states. 

Early  in  the  war,  England  and  other  powers  recognized  the 
belligerency  of  both  North  and  South,  and  it  was  feared  that 
both  England  and  France  were  on  the  point  of  recognizing  the 
independence  of  the  Confederate  States.  In  order  to  prevent  the 
latter,  and  to  emphasize  our  right  of  denial  of  secession,  both 
President  Lincoln  and  his  Secretary  of  State  Mr.  Seward  had,  in 
proclamations  and  official  correspondence,  spoken  of  the  whole 
affair  as  a  mere  suppression  of  a  local  insurrection  of  citizens, 
and  ignored  that  it  was  a  war.  At  first,  too,  there  had  been  much 
opposition  in  the  Northern  States  to  the  recognition  of  belliger 
ency  by  England  and  France,  because,  in  the  popular  mind,  it 
had  been  somewhat  confused  with,  or  at  least  held  as  being  a 
sort  of,  recognition  of  independence. 

By  well-known  principles  of  international  law,  blockade  and 
prize  could  only  be  resorted  to  in  case  of  war  with  an  existing 
power,  not  in  a  mere  suppression  of  a  local  insurrection  of  citizens. 
To  keep  up  the  blockade  and  capture  and  condemn  blockade- 
runners  was  essential  to  the  suppression  of  the  rebellion.  With 
out  these  powers,  conflict  might  be  indefinitely  prolonged,  with 
greatly  increased  chances  of  success  for  the  Confederacy. 

The  owners  of  the  vessels  captured  as  prizes  brought  suit  in 
the  Federal  Courts,  claiming  the  vessels  back  on  the  ground 
that  their  capture  was  illegal,  contending  that  there  was  no  war, 
but  only  a  local  insurrection.  These  suits  were  appealed  to  the 
United  States  Supreme  Court.  Mr.  Dana,  as  United  States 


274  RICHARD  HENRY  DANA,  JR. 

District  Attorney  for  the  District  of  Massachusetts,  to  which 
district  some  of  the  prizes  were  brought,  argued  these  cases  for 
the  government,  both  in  the  lower  court  and  in  the  Supreme 
Court. 

Here  was  a  dilemma,  and  how  was  Mr.  Dana  to  meet  it?  How 
did  he  meet  it?  He  reasoned  out  the  philosophy  of  war  and 
showed  that  war  was  a  process  of  coercion,  and  that  blockade  and 
prize  were  recognized  powers  of  coercion  allowed  by  the  law  of 
nations  in  a  war.  Having  shown  this,  he  emphatically  recognized 
that  a  mere  suppression  of  a  local  insurrection  of  citizens  was  not 
a  war  in  this  sense,  and  that  to  make  it  a  war,  it  must  be  against 
an  existing  nation;  but  he  went  on  to  prove  that,  though  the  na 
tion  against  which  we  were  contending  must  be  an  existing  one, 
or,  in  legal  language,  a  de  facto  nation,  it  was  not  necessary  that 
/we  should  recognize  its  independence,  or  that  its  existence  was 
lawful,  or,  technically  speaking,  that  it  was  a  de  jure  nation.  He 
/  also  turned  the  recognition  of  belligerency  by  foreign  nations  into 
/  what  it  really  was,  though  not  generally  understood  to  be, — 
an  acquiescence  in  our  rights  to  these  disputed  war  powers. 

The  argument  by  which  Mr.  Dana  enforced  these  views  is,  by 
tradition  of  the  Bench  and  Bar  to  this  day,  one  of  the  greatest 
arguments,  none  greater,  before  the  Supreme  Court  of  the 
United  States.  He  convinced  the  entire  court.  To  appreciate  the 
task  Mr.  Dana  had  before  him,  the  reader  should  be  reminded 
that,  out  of  a  court  of  nine  judges,  six  were  democrats,  with  a 
strong  leaning  towards  the  doctrine  of  state  supremacy,  and 
three  of  these  were  appointed  from  slave-holding  states.  The 
opinion  of  the  court  not  only  unanimously  sustained  Mr.  Dana's 
contention  of  the  right  of  prize,  and  based  the  opinion  on  Mr. 
Dana's  argument,  but  also  clearly  stated  Mr.  Dana's  points,  that 
to  make  it  a  war,  it  was  enough  that  the  nation  against  which  we 
were  fighting  was  a  de  facto  one,  that  it  need  not  be  one  de  jure, 
nor  need  its  independence  be  recognized.  Up  to  that  time,  our 
government  had  been  performing  the  difficult  and  somewhat  con 
tradictory  task  of  carrying  on  a  war,  when  blockade,  contraband 
and  prize  were  considered;  but  only  suppressing  a  local  insurrec 
tion  of  citizens,  when  neutrality  or  recognition  of  independence 


THE  PRIZE  CAUSES  275 

by  foreign  powers  or  right  of  secession  was  considered.  After  the 
decision  of  the  Supreme  Court  in  1863  on  the  Prize  Causes,  it  was 
no  longer  necessary  to  carry  on  this  inconsistent,  double-dealing 
policy.  The  decision  of  the  court  had  done  away  with  any  such 
necessity,  and  had  officially  committed  us  to  the  fact  of  a  war, 
and  a  great  war. 

While  Mr.  Dana's  argument  and  the  decision  of  the  court  made 
all  this  clear,  the  public  was  slow  to  take  in  the  changed  point  of 
view,  and  Mr.  Dana,  in  order  to  clear  up  the  misunderstandings 
that  arose,  issued  a  pamphlet,  entitled,  "Enemy's  Territory  and 
Alien  Enemies:  What  the  Supreme  Court  decided  in  the  Prize 
Causes."  This  is  published  here.  There  is  also  the  brief,  both 
separately  printed,  and  published  with  extracts  from  his  argu 
ment  with  the  decision  of  the  court  in  the  second  volume  of 
Black's  United  States  Supreme  Court  Reports.1  To  the  lay 
reader,  I  may  explain  that  a  brief  is  rather  dull  reading.  It  is 
made  up  of  short,  condensed  statements  of  the  chief  points,  fol 
lowed  by  citations  of  authority  by  name,  book  and  page,  in  sup 
port  of  these  points.2 

But,  oh,  for  the  argument !  Verily,  the  lawyer's  fame  is  writ 
in  water!  Mr.  Adams  tells  in  the  Life3  the  complimentary  re 
marks  made  by  the  judges  privately,  and  also  publicly  stated 
by  Judge  Greer  on  reading  the  opinion,  and  by  members  of  the 
bar  who  were  present.  But  the  argument,  with  all  its  power  of 
illustration,  force  of  logic,  clear  statement,  philosophy  and  elo 
quence,  except  as  a  tradition,  has  died  with  the  death  of  those 
who  heard  it. 

The  pamphlet  called  "Enemy's  Territory"  touches  a  special 
branch  of  the  Prize  Causes.  That  branch  has  nothing  to  do  with 
the  capture  of  blockade-runners.  It  is  related  only  to  the  cap 
ture  at  sea,  wherever  found,  of  vessels  belonging  to  citizens 

1  2  Black,  635.    Mr.  Dana's  brief  and  summary  of   argument,  pp. 
650-665.   The  opinion  of  the  court,  pp.  665-682. 

2  For  further  consideration  of  the  same  questions  involved,  and  the 
popular  misunderstanding  of  these  Prize  Causes,  see  Note  to  "  Grasp 
of  War  "  speech,  supra. 

3  Vol.  ii,  pp.  266-270. 


276  RICHARD  HENRY  DANA,  JR. 

residing  in  the  "enemy's  territory."   The  prize  law  allows  such 
captures  only  in  case  the  territory  is  "enemy's  territory." 

Now,  when  he  took  the  stand  that  the  territory  (Richmond, 
in  the  case  of  the  Amy  Warwick)  was  enemy's,  he  seemed  to  be 
admitting  that  it  was  territory  rightfully  belonging  to  the  enemy. 
In  the  general  use  of  language,  that  would  be  the  case.  To  il 
lustrate,  —  if,  in  a  suit  between  myself  and  B  as  to  the  owner 
ship  of  a  lot  in  the  possession  of  B,  I  had  in  previous  conver 
sation  called  it  "B's  lot,"  that  would  be  admissible  evidence 
to  show  that  I  had  acknowledged  that  it  rightfully  belonged 
to  B ;  but,  to  apply  the  analogy  to  the  prize  law,  in  order  to  get 
the  lot  back  from  B  by  process  of  court  and  secure  a  certain 
writ,  I  have  to  show  that  B  is  in  possession  and  that  I  am  not 
able  to  get  the  lot  by  peaceable  means;  and,  one  step  further, 
to  make  the  parallel  complete,  let  us  suppose  that  the  process 
by  which  I,  the  plaintiff,  am  to  get  the  lot  out  of  the  possession 
of  B,  the  defendant,  requires  me  to  call  it  the  "defendant's  lot." 
In  that  case,  it  would  be  clear  enough  from  the  context  that  I 
am  not  admitting  that  it  was  B's  lot  as  of  right,  otherwise 
I  would  not  be  taking  out  the  process;  but  that  I  admit  only 
that  it  was  B's  for  the  time  being  by  forcible  possession,  which 
possession  B  is  intending  to  keep  as  long  as  he  can. 

Just  so  in  the  branch  of  prize  law  that  allows  capture  of  ves 
sels  of  citizens  in  enemy's  territory,  the  process,  that  is,  the 
capture  and  condemnation,  requires  the  government  to  show 
that  the  territory  is  in  complete  forcible  control  of  the  enemy. 
The  phrase  in  the  process  is  "enemy's  territory."  That  process 
however,  in  the  Civil  War,  was  but  a  part  of  the  proceedings  by 
which  the  United  States  sought  to  get  the  territory  back  into  its 
possession  from  out  of  the  possession  of  those  holding  it  by  force. 

There  was,  no  doubt,  considerable  confusion  in  the  public 
mind,  as  always  arises  when  common  phrases  are  used  in  any 
science  in  a  restricted  or  unusual  sense;  but  in  addition  to  that, 
it  must  be  remembered  that  there  were  many  persons  in  the  North, 
and  still  more  in  European  countries,  whose  sympathies  with 
the  South  induced  them  to  make  such  use  of  the  decision  of  the 
Supreme  Court  as  would  mislead  people  into  thinking  that  that 


THE  PRIZE  CAUSES  277 

decision  had  acknowledged  the  independence  of  the  Confeder 
acy  and  the  right  of  secession;  and  this  necessitated  the  publi 
cation  of  the  pamphlet  on  this  special  branch  of  the  prize  law.] 

ENEMY'S  TERRITORY  AND  ALIEN  ENEMIES 
WHAT  THE  SUPREME  COURT  DECIDED  IN  THE   PRIZE  CAUSES 

MR.  WILLIAM  BEACH  LAWRENCE  has  written  a 
letter  to  a  foreign  journal  ("The  Law  Magazine," 
London,  November,  1863),  in  which  he  says  of  the 
decision  of  the  Supreme  Court  of  the  United  States, 
in  the  prize  causes  last  winter,  —  "What  was  some 
what  at  variance  with  the  views  of  those  who  had 
heretofore  denied  the  right  of  secession,  it  recognized 
the  war  as  made  by  the  States  in  their  political 
capacities,  and,  as  a  corollary  therefrom,  declared  all 
the  inhabitants  of  the  seceded  States,  on  account  of 
their  residence  and  without  regard  to  their  individ 
ual  locality,  alien  enemies." 

My  purpose  is  to  show  that  this  is  not  a  correct 
statement  of  the  decision.  It  is  now  reported  in  2 
Black's  Reports,  and  it  will  be  found  that  the  Court 
made  no  such  recognition,  followed  no  such  corollary, 
announced  no  such  declaration,  and  arrived  at  no 
such  result. 

This  misconception  of  the  decision  has  not  been 
confined  to  Mr.  Lawrence  and  the  advocates  of  a  state 
right  of  secession.  Prominent  men,  advocating  far 
different  doctrines,  seem  to  have  looked  at  the  de 
cision  in  the  same  light.  It  has  been  vouched  in  to  aid 
various  theories;  but  all  under  the  impression  that  it 
decides  that  the  political  relation  of  the  inhabitants 
of  the  insurgent  states  to  the  General  Government  is 
that  of  alien  enemies,  and  that  the  territory  covered 


278  RICHARD  HENRY  DANA,  JR. 

by  those  states  is,  in  law,  no  more  than  enemy's  ter 
ritory.  It  has,  therefore,  seemed  to  me  not  a  super 
fluous  task,  on  an  issue  so  vital  and  pressing,  to  en 
deavor  to  explain  the  prize  decisions,  on  that  point, 
to  persons  who  may  not  have  studied  the  principles 
upon  which  they  rest.  And  I  make  the  attempt  with 
the  more  confidence  because,  as  the  opinion  of  the 
Court  supposes  in  its  readers  a  knowledge  of  the 
phraseology  and  principles  of  the  laws  of  war,  an  en 
deavor  to  give  it  a  popular  explanation  is  not  super 
erogatory.  Neither  is  it  unnatural  that  the  general 
reader  should  be  misled  by  the  terms  used,  and  by 
the  form  of  the  reasoning,  for  prize  law  has  its  tech 
nical  terms,  and  the  end  to  which  some  of  the  reason 
ing  is  addressed  is  not  apparent  without  a  knowledge 
of  the  whole  ground.  I  do  not  purpose  to  go  further 
than  the  Court,  and  discuss  the  ultimate  question,  — 
what  is  the  relation  of  those  states,  as  bodies  politic, 
or  of  their  inhabitants,  to  the  General  Government, 
or  to  offer  any  opinion  of  my  own  in  aid  of  a  solution 
of  that  question.  I  confine  myself  to  the  humbler, 
but  I  think  important  task,  of  offering  a  popular  ex 
planation  of  the  decision  of  the  Court. 

The  Supreme  Court  decided  that  the  established 
rule  of  international  war  respecting  "enemy's  pro 
perty"  is  applicable  to  such  an  internal  contest  as 
that  in  which  we  are  now  engaged.  This  was  the 
extent  of  the  decision  on  that  point:  and  in  this  the 
Court  was  unanimous. 

What  is  the  rule  of  international  war  respecting 
"enemy's  property"?  It  is  sufficient  for  the  present 
purpose  to  state  it  thus:  If  a  person  is  domiciled  in 
enemy's  territory,  his  property,  found  on  the  high 
seas,  is  subject  to  capture.  It  is  immaterial  what 


THE  PRIZE  CAUSES  279 

may  be  the  civil  or  political  status  of  that  person,  as 
regards  the  government  of  the  capturing  power.  He 
may  be  an  alien  enemy.  He  may  be  a  neutral  —  per 
haps  a  consul  of  a  neutral  power.  He  may  be  a  loyal 
citizen  of  the  capturing  power,  with  an  involuntary 
domicile  in  the  enemy's  territory.  When  the  Court 
condemns  his  property,  it  is  because  of  the  situation 
or  predicament  of  the  property,  and  not  because  of 
the  moral  animus  or  political  status  of  its  owner.  It 
is  called  "enemy's  property";  but  that  is  a  technical 
phrase  of  prize  law.  It  does  not  imply  anything  as  to 
the  legal,  political  status  of  the  owner.  One  of  the 
earliest  condemnations  of  "enemy's  property"  in  the 
war  of  1812,  was  of  the  property  of  an  American  citi 
zen,  who  happened  to  be  domiciled  in  Liverpool,  for 
commercial  purposes,  when  the  war  broke  out  and 
the  capture  was  made.  (The  Venus,  8  Cranch,  253.) 
A  student  of  international  law  can  easily  suppose 
cases  where  the  property  even  of  the  President  him 
self,  in  that  war,  might  have  been  condemned  by  us 
as  "enemy's  property." 

It  may  be  useful,  in  this  connection,  to  refer  to  the 
reasons  upon  which  this  rule  rests,  as  aiding  to  a  bet 
ter  understanding  of  the  rule  itself.  The  reasons  are, 
that  property,  in  certain  situations,  is  so  placed  that 
the  hostile  power,  whom  the  war  is  intended  to  coerce, 
has  an  interest  in  its  existence,  transit,  or  arrival, 
and  the  capturing  power  a  corresponding  interest  to 
deprive  the  enemy  of  that  advantage.  In  this  con 
flict  of  interests,  the  consent  of  nations  authorizes 
the  strongest  to  take  the  property,  if  it  is  found  at 
sea.  One  of  the  facts  which  puts  property  in  this 
predicament  is  that  the  owner  of  it  is  himself  domi 
ciled  in  the  enemy's  territory,  and  therefore  he  and 


280  RICHARD  HENRY  DANA,  JR. 

his  property  are  subject  to  the  unlimited  power  of 
the  enemy,  to  his  taxation,  his  exactions,  his  confis 
cations,  forced  contributions,  and  use  of  all  kinds, 
with  or  without  compensation.  As  the  power  of  the 
enemy  over  the  property  of  the  inhabitants  of  his 
territory  does  not  depend  on  their  political  status, 
and  may  even  be  increased  by  their  being  hostile  to 
him,  so  neither  does  the  right  of  the  belligerent  to 
intercept  and  take  such  property  depend  on  those 
considerations.  It  is  at  the  discretion  of  political 
power  to  forego  the  condemnation,  if  the  owner  is 
known  to  be  a  loyal  subject,  having  an  involuntary 
domicile  with  the  enemy,  or  to  condemn  the  property 
and  remunerate  the  owner  after  the  war  is  over,  or 
to  make  no  remuneration.  As  a  judicial  question, 
the  Prize  Court  can  only  decide  that  the  property 
is  lawful  prize. 

The  Supreme  Court  applied  this  rule  to  our  pre 
sent  war.  They  held  that  the  property  of  a  person 
domiciled  in  enemy's  territory  was  subject  to  cap 
ture,  as  a  question  of  law,  it  being  a  political  question 
whether  that  right  of  capture  should  be  enforced.  It 
was  immaterial,  in  domestic  war.  as  in  foreign  war, 
whether  the  owner,  so  domiciled,  be  a  rebel  citizen  or 
a  loyal  citizen,  a  foreigner  aiding  the  rebellion  volun 
tarily  or  involuntarily  or  not  aiding  it  at  all,  or 
a  loyal  citizen  having  an  involuntary  domicile  there. 
The  Court  decided  absolutely  nothing  as  to  the  legal 
or  political  status  of  the  owner  in  relation  to  our  own 
government.  To  guard  against  a  mistake  which 
might  arise  from  the  use  of  the  term  "enemy's  pro 
perty,"  the  Court  expressly  says  that  "enemy's  pro 
perty"  is  "a  technical  term  peculiar  to  Prize  Courts." 
And  again,  "Whether  property  be  liable  to  capture 


THE  PRIZE  CAUSES  281 

as  'enemy's  property,'  does  not  in  any  manner  de 
pend  on  the  personal  allegiance  of  the  owner.  It  is 
of  no  consequence  whether  it  belongs  to  an  ally  or  a 
citizen."  (Prize  Cases,  %  Black,  674.)  As  Chief  Jus 
tice  Marshall  said,  it  is  "a  hostile  character  impressed 
on  the  property,"  from  its  predicament  or  situation, 
that  gives  it  that  name.  And  as  Judge  Story  said,  of 
property  of  a  citizen  found  engaged  in  trade  with  the 
enemy,  "it  is  the  illegal  traffic  that  stamps  it  as  'en 
emy's  property." 

It  is  further  necessary  to  inquire  how  the  Court 
treated  the  question  of  "enemy's  territory,"  resi 
dence  of  the  owner  in  which  renders  the  property  at 
sea  liable  to  capture.  Here,  again,  the  Court  simply 
applied  to  our  contest  the  admitted  rule  of  interna 
tional  law.  What  is  that  rule?  It  is  sufficient  for  the 
present  purpose  to  say  that  a  certain  kind  and  degree 
of  possession  by  the  enemy,  and  the  exercise  of  a 
de  facto  jurisdiction  over  a  region,  render  it,  for  the 
purposes  of  war  and  of  the  prize  law,  "enemy's  ter 
ritory."  Whether  a  place  is,  in  the  meaning  of  the 
prize  law,  "enemy's  territory,"  is  a  question  of  fact. 
It  is  not  concluded  by  treaties,  statutes,  ordinances,  or 
any  paper-title.  War  is  an  appeal  to  force,  and  force 
settles  the  question  of  enemy's  territory  for  the  time. 
In  the  war  of  1812-14,  the  peninsula  of  Castine  be 
came  enemy's  territory,  within  the  meaning  of  the 
laws  of  war.  If  a  vessel  belonging  to  a  person  domi 
ciled  and  actually  residing  there,  at  that  time,  had 
been  taken  by  one  of  our  cruisers,  bound  in  to  that 
port,  our  Prize  Courts  would  have  condemned  it  as 
lawful  prize,  without  deciding  or  inquiring  whether 
the  owner  was  a  British  subject,  an  American  citizen, 
or  a  neutral.  The  doctrine  of  PRIZE  OF  WAR  does  not 


282  RICHARD  HENRY  DANA,  JR. 

rest  on  the  basis  of  a  penalty  on  the  owner  for  his  per 
sonal  hostility,  actual  or  implied.  It  rests  on  the  basis 
of  the  right  of  one  belligerent  power  to  coerce  another 
belligerent  power  by  taking  from  its  control  or  possibil 
ity  of  use,  property  and  materials  of  certain  descriptions 
and  found  in  certain  predicaments.  FORFEITURES  and 
CONFISCATIONS  belong  to  a  distinct  branch  of  law, 
-  to  the  internal,  municipal  rules  of  each  country, 
to  its  penal  or  criminal  code.  We  are  treating  only 
of  the  rights  and  powers  of  WAR,  to  which  alone  the 
doctrines  of  Prize  belong.  When  the  British  withdrew 
their  occupation  of  Castine  the  owner  of  this  pro 
perty  condemned  as  "enemy's  property,"  if  a  citizen 
of  the  United  States,  would  have  resumed  all  his  rights 
and  duties  as  such,  and  no  act  of  the  people  of  Cas 
tine,  or  of  the  National  Government,  or  of  the  State 
Government,  would  be  necessary  to  establish  his 
status  as  a  citizen,  or  the  status  of  Castine  as  part  of 
the  State  and  Nation. 

Now,  all  that  the  Supreme  Court  did  in  respect 
to  the  proposition  of  "enemy's  territory,"  was  to 
apply  the  rules  of  international  war  to  our  contest, 
so  far  as  the  law  of  prize  was  concerned.  The  owners 
of  the  vessels  and  their  cargoes  had  their  domicile 
and  actual  residence  in  Richmond,  Virginia,  and 
Richmond  was,  at  the  time  of  the  capture  and  ad 
judication,  so  far  in  the  possession,  and  under  such 
control  and  de  facto  jurisdiction  of  enemies  of  the 
United  States,  as  to  render  it,  at  that  time,  within 
the  meaning  of  prize  law,  "enemy's  territory." 

That  result  was  not  owing  to  state  lines,  secession 
ordinances,  or  any  other  conventional  acts  of  states 
or  people.  It  was  a  question  of  de  facto  forcible  oc 
cupation.  Richmond  would  have  been  pronounced 


THE  PRIZE  CAUSES  283 

"enemy's  territory,"  and  this  property  condemned 
as  "enemy's  property,"  equally  as  well,  if  Virginia 
had  never  passed  an  ordinance  of  secession.  And 
conversely,  if  Richmond  had  been  regained  into  our 
possession,  it  would  not  have  been  decreed  "enemy's 
territory,"  with  all  its  secession  ordinance,  nor  could 
this  property  have  been  decreed  "enemy's  property." 
When  a  prize  court,  sitting  under  the  laws  of  war, 
decides  that  a  certain  region  is  enemy's  territory,  for 
the  purposes  of  prize  law,  it  does  not  necessarily 
predicate  anything,  affirmatively  or  negatively,  as 
to  the  civil  or  political  relations  of  that  region  or  of 
its  inhabitants  with  the  enemy's  government,  or  with 
its  own. 

To  guard  against  a  possible  mistake  arising  from 
the  use  of  the  phrase  "enemy's  territory,"  Judge 
Grier  strikingly  says,  "it  has  a  boundary  marked  by 
lines  of  bayonets,  and  which  can  be  crossed  only  by 
force.   South  of  this  line  is  enemy's  territory,  because 
it  is  claimed  and  held  in  possession  by  an  organized, 
hostile  and  belligerent  power."  The  reason  why  it  is 
enemy's  territory  for  the  time  being,  and  for  pur 
poses  of  prize,  is  not  its  ordinances  of  secession,  or 
any  legislation,  valid  or  invalid,  of  the  states,  or  any 
legal  effects  of  rebellion  on  the  region  or  its  inhabit 
ants, —  but  "because  it  is  claimed  and   held  by   an 
organized,  hostile,  and  belligerent  power."    It  is  im 
material  whether  that  organized,  hostile,  belligerent 
power  has  used  the  state  machinery  or  not;  whether 
it  claims  to  be  the  several  states,  or  a  new  body  poli 
tic;  whether  it  is  composed  solely  of  citizens,  or  solely 
of  invading  aliens,  or  of  both.   It  is  enough  that  it  is 
such  an  organized  force  as  to  raise  its  acts  to  the  dig 
nity  of  war,  and  that  the  proper  political  department 


284  RICHARD  HENRY  DANA,  JR. 

of  our  government  has  treated  it  as  war,  and  applied 
to  it  the  rights  and  powers  of  maritime  capture. 

The  boundary  of  enemy's  territory  is,  then,  a  vary 
ing  line,  depending  on  de  facto  condition,  and  not  on 
the  enemy's  legislation,  valid  or  invalid.  What  kind 
and  degree  of  possession  is  necessary  to  constitute  a 
region  "enemy's  territory,"  for  the  purposes  of  the 
law  of  prize,  the  Court  did  not  think  necessary  to  de 
cide,  for  the  possession  the  enemy  had  of  Richmond 
was  sufficient  to  satisfy  any  possible  definition.  (If 
the  reader  desires  to  investigate  the  question  of  the 
kind  and  degree  of  possession  by  the  enemy  which 
will  make  a  region  "enemy's  territory"  for  the  time 
being,  he  will  find  nearly  all  the  law  on  the  subject 
in  the  case  of  The  Gerasimo,  in  11  Moore's  Pr.  Coun 
cil  Reports.) 

The  case  which  presented  the  naked  question  of 
enemy's  property  was  the  Amy  Warwick.  This  was 
first  adjudicated  by  Judge  Sprague;  and  in  his  opin 
ion,  he  sets  forth  the  doctrine  and  its  reasons,  and 
says  that  the  judgment  does  not  "go  beyond  the  fact 
of  permanent  residence,"  and  takes  pains  to  pre 
clude  any  inference  that  the  decision  affects  the  ex 
isting  or  future  political  relations  of  the  territory  or 
its  inhabitants  with  the  General  Government  or  the 
State.  (The  Amy  Warwick,  24  Law  Reporter,  335, 
494.) 

At  the  argument  of  the  prize  causes  on  appeal,  the 
counsel  for  the  United  States  adopted  a  line  of  argu 
ment  intended  to  satisfy  the  Court  that  such  were 
the  reasons  on  which  rested  the  rules  of  war  touching 
enemy's  property ,  that  those  rules  could  be  applied 
to  an  internal  war  without  the  necessity  of  predi 
cating  anything  as  to  the  political  relations  of  the 


THE  PRIZE  CAUSES  285 

owners  or  of  the  place  of  their  residence  towards  the 
General  Government.1 

It  was  wittily  said,  by  a  distinguished  member  of 
Congress,  that  the  Supreme  Court  had  decided  that 
two  of  their  number  were  alien  enemies.  I  refer  to 
this  bon  mot  as  a  good  illustration  of  an  incorrect 
understanding  of  the  decision.  If  Mr.  Justice  Wayne 
had  continued  to  reside  in  Savannah,  and  Savannah 
continued  to  be  under  the  control  of  the  enemy,  a 
vessel  belonging  to  Judge  Wayne  would  have  been 
good  prize,  if  the  Government  chose  to  treat  it  as  such. 
But  the  fact  that  his  property  had  been  so  condemned 
would  have  no  legal  effect  on  his  political  status  under 
our  Government,  or  on  the  political  status  of  Georgia 
or  its  inhabitants. 

In  closing,  I  offer  the  following  synopsis  of  what 
I  understand  the  Court  did  and  did  not  decide:— 

What  the  Court  did  not  decide :  - 

1.  The  Court  did  not  decide  that  the  passing  of  the 
ordinances  of  secession  made  the  territory  of  the  in 
surgent  states  enemy's  territory,  or  its  inhabitants 
alien  enemies. 

2.  The  Court  did  not  decide  that  the  passing  of 
the  secession  ordinances  terminated,  or  in  any  way 
affected,  the  legal  relations  of  the  insurgent  states, 
as  bodies  politic,  with  the  General  Government,  or 
the  political  relations  of  their  inhabitants  with  the 
General  Government  or  with  their  respective  states. 

3.  The   Court   decided   absolutely  nothing  as   to 
the  effect  of  the  passing  of  the  secession  ordinances 

1  I  regret  not  to  find  among  the  arguments  for  the  Government  in 
these  causes,  in  2  Black's  Reports,  the  admirable  argument  of  Mr. 
Evarts.  His  absence  from  the  country  on  public  duty  probably  pre 
vented  his  preparing  a  synopsis  for  the  reporter. 


286  RICHARD  HENRY  DANA,  JR. 

on  the  civil  or  political  relations  of  the  inhabitants 
of  the  insurgent  states  with  the  General  Government 
or  with  their  respective  states,  or  on  the  relations  of 
the  insurgent  states,  as  bodies  politic,  with  the  Gen 
eral  Government. 

4.  The  Court  did  not  decide  that  the  inhabitants 
of  the  seceding  states  are  alien  enemies  at  all,  or  that 
the  territory  of  those  states  is  enemy's  territory. 

What  the  Court  did  decide:  — 

1.  That  in  case  of  domestic  war,  the  Government 
of  the  United  States  may,  at  its  option,  use  the  powers 
and  rights  known  to  the  international  laws  of  war  as 
blockade  and  capture  of  enemy's  property  at  sea. 

2.  That  to  determine  whether  property  found  at 
sea  is  "enemy's  property,"  within  the  meaning  of  the 
law  of  prize,  the  same  tests  may  be  applied  in  domes 
tic  as  in  international  wars. 

3.  One  of  those  tests  is  that  the  owner  of  the  pro 
perty  so  found  has  his  domicile  and  residence  in  a  place 
of  which  the  enemy  has  a  certain  kind  and  degree  of 
possession. 

4.  Richmond,  Virginia,  was,  at  the  time  of  the  cap 
ture  and  condemnation  of  those  vessels,  under  such 
possession  and  control  of  an  organized,  hostile,  bel 
ligerent  power,  as  to  render  it  indisputably  "enemy's 
territory,"  within  the  strictest  definitions  known  to 
the  laws  of  war. 

5 .  That  it  was  immaterial  how  that  organized  power 
came  into  existence,  whether  by  the  use  of  state  ma 
chinery  or  otherwise,  or  what  its  political  claims  or 
assumptions  are,  or  whether  it  is  composed  of  rebel 
citizens,  or  invading  aliens,  or   both,  or  whether  it 
professes  to  recognize   state  lines.    It  is  enough  for 
the  Court  that  it  is  waging  war,  and  so  recognized 


THE  PRIZE  CAUSES  287 

by  the  political  department  of  the  General  Govern 
ment,  and  has  the  requisite  possession  of  the  region 
in  which  the  owner  of  the  property  resides. 

6.  That  a  Court  of  Prize,  in  such  case,  decides  in 
dependently  of  all  questions  as  to  the  political  rela 
tions  of  the  owner,  or  of  the  place  of  his  domicile,  with 
the  Government  of  the  capturing  power. 


XIII 
RUFUS  CHOATE 

REMARKS  AT  THE  MEETING  OF  THE  SUFFOLK 
BAR  IN  HIS  HONOR 

MR.  CHAIRMAN,  —  By  your  courtesy,  and  the  cour 
tesy  of  this  bar,  which  never  fails,  I  occupy  an  earlier 
moment  than  I  should  otherwise  be  entitled  to;  for 
the  reason  that  in  a  few  hours  I  shall  be  called  upon 
to  take  a  long  leave  of  the  bar  and  of  my  home.  I 
cannot  do  that,  sir,  I  cannot  do  that  without  rising 
to  say  one  word  of  what  I  know  and  feel  upon  this 
sad  loss. 

The  pressure  which  has  been  upon  me  in  the  last 
few  days  of  my  remaining  here,  has  prevented  my 
making  that  kind  of  preparation  which  the  example 
of  him  whom  we  commemorate  requires  of  every  man 
about  to  address  a  fit  audience  upon  a  great  subject. 
I  can  only  speak  right  on  what  I  do  feel  and  know. 

"The  wine  of  life  is  drawn."  The  "golden  bowl 
is  broken."  The  age  of  miracles  has  passed.  The 
day  of  inspiration  is  over.  The  Great  Conqueror, 
unseen  and  irresistible,  has  broken  into  our  temple 
and  has  carried  off  the  vessels  of  gold,  the  vessels 
of  silver,  the  precious  stones,  the  jewels,  and  the 
ivory;  and,  like  the  priests  of  the  Temple  of  Jerusa 
lem,  after  the  invasion  from  Babylon,  we  must  con 
tent  ourselves,  as  we  can,  with  vessels  of  wood  and 
of  stone  and  of  iron. 

With  such  broken  phrases  as  these,  Mr.  Chairman, 


RUFUS  CHOATE  289 

perhaps  not  altogether  just  to  the  living,  we  endeavor 
to  express  the  emotions  natural  to  this  hour  of  our 
bereavement.  Talent,  industry,  eloquence,  and  learn 
ing  there  are  still,  and  always  will  be,  at  the  Bar 
of  Boston.  But  if  I  say  that  the  age  of  miracles  has 
passed,  that  the  day  of  inspiration  is  over,  —  if  I 
cannot  realize  that  in  this  place  where  we  now  are, 
the  cloth  of  gold  was  spread,  and  a  banquet  set  fit 
for  the  gods,  —  I  know,  sir,  you  will  excuse  it.  Any 
one  who  has  lived  with  him  and  now  survives  him, 
will  excuse  it,  —  any  one  who,  like  the  youth  in 
Wordsworth's  ode, 

"by  the  vision  splendid, 
Is  on  his  way  attended, 
•     At  length  .  .  .  perceives  it  die  away, 
And  fade  into  the  light  of  common  day." 

Sir,  I  speak  for  myself,  —  I  have  no  right  to  speak 
for  others,  —  but  I  can  truly  say,  without  any  ex 
aggeration,  taking  for  the  moment  a  simile  from  that 
element  which  he  loved  as  much  as  I  love  it,  though 
it  rose  against  his  life  at  last,  —  that  in  his  presence 
I  felt  like  the  master  of  a  small  coasting  vessel,  that 
hugs  the  shore,  that  has  run  up  under  the  lee  to  speak 
a  great  homeward-bound  Indiaman,1  freighted  with 
silks  and  precious  stones,  spices  and  costly  fabrics, 
with  sky-sails  and  studding-sails  spread  to  the  breeze, 
with  the  nation's  flag  at  her  mast-head,  navigated 
by  the  mysterious  science  of  the  fixed  stars,  and 
not  unprepared  with  weapons  of  defence,  her  decks 
peopled  with  men  in  strange  costumes,  speaking  of 
strange  climes  and  distant  lands. 

All  loved  him,  especially  the  young.    He  never 

1  As  Mr.  Dana  originally  gave  it,  it  was  "a  great  Spanish  galleon/* 


290  RICHARD  HENRY  DANA,  JR. 

asserted  himself,  or  claimed  precedence,  to  the  in 
jury  of  any  man's  feelings.  Who  ever  knew  him  to 
lose  temper?  Who  ever  heard  from  him  an  unkind 
word?  And  this  is  all  the  more  strange  from  the  fact 
of  his  great  sensitiveness  of  temperament. 

His  splendid  talents  as  an  orator  need  no  commen 
dation  here.    The  world  knows  so  much.   The  world 
knows  perfectly  well  that  juries  after  juries  have  re 
turned  their  verdicts  for  Mr.  Choate's  clients,  and 
the  Court  has  entered  them  upon  the  issues.    The 
world  knows  how  he  electrified  vast  audiences  in  his 
more  popular  addresses;  but,  sir,  the  world  has  not 
known,  though  it  knows  better  now  than  it  did,  - 
and  the  testimony  of  those  better  competent  than 
I  am  will  teach  it,  -  -  that  his  power  here  rested  not 
merely  nor  chiefly  upon  his  eloquence,  but  rested 
principally  upon  his  philosophic  and  dialectic  power. 
He  was  the  greatest  master  of  logic  we  had  amongst 
us.  No  man  detected  a  fallacy  so  quickly,  or  exposed 
it  so  felicitously  as  he,  whether  in  scientific  terms  to 
the  bench,  or  popularly  to  the  jury;  and  who  could 
play  with  a  fallacy  as  he  could?  Ask  those  venerated 
men  who  compose  our  highest  tribunal,  with  whom 
all  mere  rhetoric  is  worse  than  wasted  when  their 
minds  are  bent  to  the  single  purpose  of  arriving  at 
the  true  results  of  their  science,  —  ask  them  wherein 
lay  the  greatest  power  of  Rufus  Choate,  and  they 
will  tell  you  it  lay  in  his  philosophy,  his  logic,  and 
his  learning. 

He  was,  sir,  in  two  words,  a  unique  creation.  He 
was  a  strange  product  of  New  England.  Benjamin 
Franklin,  John  Adams,  Samuel  Dexter,  Daniel  Web 
ster,  and  Jeremiah  Mason  seem  to  be  the  natural 
products  of  the  soil;  but  to  me  this  great  man  always 


RUFUS  CHOATE  291 

seemed  as  not  having  an  origin  here  in  New  England, 
but  as  if,  by  the  side  of  our  wooden  buildings,  or  by 
the  side  of  our  time-enduring  granite,  there  had  risen, 
like  an  exhalation,  some  Oriental  structure,  with  the 
domes  and  glittering  minarets  of  the  Eastern  world. 
Yet,  this  beautiful  fabric,  so  aerial,  was  founded  upon 
a  rock.  We  know  he  digged  his  foundation  deep,  and 
laid  it  strong  and  sure. 

I  wished  to  say  a  word  as  to  his  wit,  but  time  would 
fail  me  to  speak  of  everything.  Yet,  without  refer 
ence  to  that,  all  I  may  say  would  be  too  incomplete. 
His  wit  did  not  raise  an  uproarious  laugh,  but  created 
an  inward  and  homefelt  delight,  and  took  up  its  abode 
in  your  memory.  The  casual  word,  the  unexpected 
answer  at  the  corner  of  the  street,  the  remark  whis 
pered  over  the  back  of  his  chair  while  the  docket  was 
calling,  you  repeated  to  the  next  man  you  met,  and 
he  to  the  next,  and  in  a  few  days  it  became  the  anec 
dote  of  the  town.  When  as  lawyers  we  met  together, 
in  tedious  hours,  and  sought  to  entertain  ourselves, 
we  found  we  did  better  with  anecdotes  of  Mr.  Choate 
than  on  our  own  original  resources. 

Besides  his  eloquence,  his  logical  power,  and  his 
wit,  he  possessed  deep  and  varied  learning.  His  learn 
ing  was  accurate,  too.  He  could  put  his  hand  on  any 
Massachusetts  case  as  quick  as  the  judge  who  de 
cided  it. 

But  if  I  were  asked  to  name  that  which  I  regard 
as  his  characteristic,  -  -  that  in  which  he  differed 
from  other  learned,  logical,  and  eloquent  men  of 
great  eminence,  —  I  should  say  it  was  his  aesthetic 
nature. 

Even  under  the  excitement  of  this  moment,  I 
should  not  compare  his  mind  in  the  point  of  mere 


RICHARD  HENRY  DANA,  JR. 

force  of  understanding  (and,  indeed,  he  would  not 
have  tolerated  such  a  comparison)  with  Daniel  Web 
ster;  and  yet  I  think  we  have  a  right  to  say  that,  in 
his  aesthetic  nature,  he  possessed  something  to  which 
the  minds  of  Franklin,  Adams,  Dexter,  Mason,  and 
Webster  were  strangers. 

But  I  ask  pardon  of  the  bar.  I  am  not  desirous 
of  making  these  comparisons. 

I  need  not  say,  sir,  that  Rufus  Choate  was  a  great 
lawyer,  a  great  jurist,  and  great  publicist,  but  more 
than  all  that  —  and  I  speak  of  that  which  I  know  — 
his  nature  partook  strongly  of  the  poetic  element. 
It  was  not  something  which  he  could  put  on  or  off, 
but  it  was  born  with  him  —  I  will  not  say  died  with 
him,  but  is  translated  with  him. 

Shakespeare  was  his  great  author.  I  would  have 
defied  even  the  Shakespeare  scholar  to  refer  to  any 
passage  of  Shakespeare  that  Mr.  Choate  would  not 
have  recognized  instantly.  Next  to  Shakespeare,  I 
think  I  have  a  right  to  say  he  thought  that  he  owed 
more  to  Wordsworth  than  to  any  other  poet.  He 
studied  him  before  it  was  the  fashion,  and  before  his 
high  position  had  been  vindicated. 

Then  he  was,  of  course,  a  great  student  of  Milton, 
and  after  that,  I  think  that  those  poets  who  gained 
the  affections  of  his  youth,  and  wrote  when  he  was 
young,  —  Byron,  Scott,  Coleridge,  Southey,  —  had 
his  affections  chiefly;  though,  of  course,  he  read  and 
valued  and  studied  Spenser  and  Dryden,  and,  as  a 
satirist  and  a  maker  of  epigrams,  Pope.  This  love 
of  poetry  with  him  was  genuine  and  true.  He  read 
and  studied  always,  not  with  a  view  to  make  orna 
ments  for  his  speeches,  but  because  his  nature  drew 
him  to  it.  We  all  know  he  was  a  fine  Greek  and  Latin 


RUFUS  CHOATE  293 

scholar;  was  accurate;  he  never  made  a  false  quantity. 
Who  ever  detected  him  in  a  misquotation?  He  once 
told  me  he  never  allowed  a  day  to  go  by  that  he  did 
not  write  out  a  translation  from  some  Greek  or  Latin 
author.  This  was  one  of  the  means  by  which  he  gained 
his  affluence  of  language.  Of  Cicero  he  was  a  fre 
quent  student,  particularly  of  his  ethical  and  philo 
sophical  writings.  But  Greek  was  his  favorite  tongue. 

One  word  more,  sir.  It  is  not  so  generally  known, 
I  suppose,  of  Mr.  Choate,  that,  certainly  during  the 
last  ten  years  of  his  life,  he  gave  much  of  his  thoughts 
to  those  noble  and  elevating  problems  which  relate 
to  the  nature  and  destiny  of  man,  to  the  nature  of 
God,  to  the  great  hereafter;  recognizing,  sir,  that 
great  truth  —  so  beautifully  expressed  in  his  favorite 
tongue  —  in  sacred  writ,  To,  py  fiXtTroneva  alo)via  — 
things  not  seen  are  eternal.  He  studied  not  merely 
psychology;  he  knew  well  the  great  schools  of  phi 
losophy;  he  knew  well  their  characteristics,  and  read 
their  leading  men.  I  suspect  he  was  the  first  man  in 
this  community  who  read  Sir  William  Hamilton, 
and  ManselPs  work  on  "The  Limits  of  Religious 
Thought";  and  I  doubt  if  the  Chairs  of  Harvard  and 
Yale  were  more  familiar  with  the  English  and  Ger 
man  mind,  and  their  views  on  these  great  problems, 
than  Mr.  Choate. 

He  carried  his  study  even  into  technical  theology. 
He  knew  its  genius  and  spirit  better  than  many  di 
vines.  He  knew  in  detail  the  great  dogmas  of  St. 
Augustine;  and  he  studied  and  knew  John  Calvin  and 
Luther.  He  knew  the  great  principles  which  lie  at 
the  foundation  of  Catholic  theology  and  institutions, 
and  the  theology  of  the  Evangelical  school;  and  he 
knew  and  studied  the  rationalistic  writings  of  the 


294  RICHARD  HENRY  DANA,  JR. 

Germans,  and  was  familiar  with  their  theories  and 
characteristics. 

With  all  those  persons  whom  he  met  and  who  he 
felt,  with  reasonable  confidence,  had  sufficient  eleva 
tion  to  value  these  subjects,  he  conversed  upon  them 
freely.  But  beyond  this  —  as  to  his  opinions,  his  re 
sults  —  I  have  no  right  to  speak.  I  only  wished  to 
allude  to  a  few  of  the  more  prominent  of  his  char 
acteristics;  and  it  is  peculiarly  gratifying  to  remem 
ber,  at  this  moment,  that  he  had  the  elevation  of 
mind  so  to  lay  hold  upon  the  greatest  of  all  subjects. 

I  meant  to  have  spoken  of  his  studies  of  the  English 
prose-writers,  among  whom  Bacon  and  Burke  had 
his  preference.  But  he  read  them  all,  and  loved  to 
read  them  all;  from  the  scholastic  stateliness  of  Mil 
ton,  warring  for  the  right  of  expressing  thoughts  for 
all  ages,  to  the  simplicity  of  Cowper's  Letters. 

But  all  this  is  gone  for  us !  We  are  never  to  see  him 
again  in  the  places  that  knew  him.  To  think  that  he, 
of  all  men,  who  loved  his  home  so,  should  have  died 
among  strangers!  That  he,  of  all  men,  should  have 
died  under  a  foreign  flag !  I  can  go  no  further.  I  can 
only  call  upon  all  to  bear  witness  now,  and  to  the 
next  generation,  that  he  stood  before  us  an  example 
of  eminence  in  science,  in  erudition,  in  genius,  in 
taste,  —  in  honor,  in  generosity,  in  humanity,  —  in 
every  liberal  sentiment,  and  every  liberal  accomplish 
ment. 


XIV 
THE  MONROE  DOCTRINE 

[Mr.  Dana's  note  to  Wheaton's  "International  Law,"  on  the 
Monroe  Doctrine,  has  been  repeatedly  reprinted  in  pamphlet 
form  and  referred  to  in  diplomatic  correspondence,  and  quota 
tions  from  it  have  appeared  in  the  text-books  and  digests  on 
international  law  in  the  very  latest  editions;  but  the  note  itself 
in  full  is  out  of  print.  Its  historical  and  international  importance 
is  great,  and  the  note  is,  I  believe,  of  lasting  value. 

I  have  added  to  Mr.  Dana's  article  on  the  Monroe  Doctrine 
a  note  carrying  it  up  to  the  present  time,  including  the  occupa 
tion  of  Mexico  by  the  French  during  our  Civil  War,  the  bound 
ary  dispute  between  Great  Britain  and  Venezuela,  the  collection 
of  claims  against  Venezuela,  President  Roosevelt's  attitude  in 
connection  with  foreign  claims  against  San  Domingo,  and  the 
Hague  Peace  Conference  treaties  regarding  the  arbitration  of 
the  amounts  of  foreign  claims  against  a  delinquent  country.] 

CERTAIN  declarations  in  the  annual  message  of 
President  Monroe  of  Dec.  2,  1823,  relating  to  for 
eign  affairs,  have  become  known  in  history  by  the 
compendious  phrase,  the  "Monroe  Doctrine."  They 
have  been  the  subject  of  a  good  deal  of  controversy 
and  misunderstanding;  and,  as  they  have  considerable 
moral  influence  among  American  traditions,  it  is  im 
portant  that  they  should  be  carefully  examined  in 
the  light  of  circumstances  of  the  time,  and  of  con 
temporaneous  and  subsequent  exposition. 

It  will  be  found  that  the  message  contains  two 
declarations,  separated  widely  in  the  order  of  the 


296  RICHARD  HENRY  DANA,  JR. 

message,  and  not  less  so  in  the  circumstances  out  of 
which  they  arose,  the  state  of  things  to  which  they 
were  to  be  applied,  and  the  principles  of  public  law 
upon  which  they  depended.  Yet  these  have  often 
been  combined,  if  not  confounded,  into  one  doctrine. 
The  first  declaration  related  to  new  acquisition  of 
sovereign  title  by  European  powers  over  any  portions 
of  the  American  continent,  by  occupation  or  colo 
nization,  as  of  unoccupied  country.  It  was  intro 
duced  in  connection  with  the  unsettled  boundaries 
in  the  North-west.  The  second  declaration  related 
to  interposition  by  European  powers  in  the  internal 
affairs  of  American  States,  and  was  introduced  in 
connection  with  the  Spanish-American  wars  of  in 
dependence.  These  two  declarations  require  a  sepa 
rate  treatment.  I  shall  take  up  first  that  respecting 
colonization. 

To  understand  the  subject,  it  is  necessary  to  refer 
to  the  state  of  things  at  the  time  of  the  declaration. 
The  only  European  powers  on  the  northern  conti 
nent  were  Russia  and  Great  Britain;  for  Spain  had, 
by  the  treaty  of  1819,  ceded  to  the  United  States  all 
her  territory  north  of  the  forty-second  parallel,  and 
the  successful  revolution  in  Mexico  had  deprived  her 
of  the  rest.  The  Czar,  by  a  ukase  of  4th  September, 
1821,  had  asserted  exclusive  territorial  right,  from 
the  extreme  northern  limit  of  the  continent  to  the 
fifty-first  parallel;  while,  by  the  treaty  of  1818  be 
tween  Great  Britain  and  the  United  States,  these 
two  powers  had  agreed  to  a  joint  occupation  for  ten 
years  of  all  the  country  that  might  be  claimed  by 
either  on  the  north-west  coast,  westward  of  the  Rocky 
Mountains,  without  prejudice  to  the  rights  or  claims 
of  either  party.  At  some  future  time  or  other,  the 


THE  MONROE  DOCTRINE  297 

boundaries  between  these  powers  must  be  settled; 
and,  in  a  country  situated  as  that  was,  it  was  well 
known  that  the  sovereign  title  to  most  parts  of  it 
must  depend  upon  original  discovery,  exploration, 
and  occupation.    In  such  controversies,  it  is  known 
to  be  a  question  as  obscure  as  it  is  important,  what 
kind  or  degree  of  occupation,  and  under  what  cir 
cumstances  made,  is  necessary  to  give  exclusive  sover 
eign  jurisdiction.    On  the  north-west  coast,  the  facts 
of  discovery,  exploration,  and  occupation  were  already 
in  dispute,  and  the  meaning  of  the  terms  rendered 
more  doubtful  by  the  Nootka-Sound   Convention, 
of  28th  October,  1790,  made  by  Great  Britain  with 
Spain,  to  whose  rights  in  that  region  the  United  States 
succeeded.  While  Great  Britain  and  the  United  States 
had  a  boundary  line  to  run  between  themselves,  they 
were  yet  united  against  the  imperial  ukase  of  1821. 
In  this  position  of  things,  Mr.  J.  Q.  Adams,  then 
Secretary  of  State,  in  a  letter  of  July  2,  1823,  wrote 
to  Mr.  Rush,  our  Minister  at  London,  inclosing  copies 
of  his  instructions  to  Mr.  Middleton,  our  Minister 
at  St.  Petersburg,  and  asking  him  to  confer  freely 
with  the  British  Government  upon  the  subject.    In 
this  letter  and  instructions,  Mr.  Adams  takes  the 
ground  that  the  exclusive  rights  of  Spain  to  any  por 
tion  of  the  American  continent  have  ceased,  by  force 
of  treaties  and  of  successful  revolutions.    He  refers 
particularly  to  the  burdensome  and  injurious  restric 
tions  and  exclusions  which  have  marked  the  Euro 
pean  colonial  systems  in  America,  in  respect  of  com 
merce,  navigation,  residence,  and  the  use  of  rivers 
for  passage,  trade,  and  fishing.    He  contends  that 
the  entire  continent  is  closed  against  the  establish 
ment,  by  any  European  power,  of  any  such  colonial 


298  RICHARD  HENRY  DANA,  JR. 

systems  hereafter,  in  any  places  not  now  in  their 
actual  occupation,  because  of  the  sufficient  sover 
eign  title  of  the  powers  already  established  there 
to  cover  the  entire  continent.  He  says:  "A  necessary 
consequence  of  this  state  of  things  will  be,  that  the 
American  continents  henceforth  will  no  longer  be 
subject  to  colonization.  Occupied  by  civilized  na 
tions,  they  will  be  accessible  to  Europeans  and  each 
other  on  that  footing  alone;  and  the  Pacific  Ocean, 
in  every  part  of  it,  will  remain  open  to  the  navigation 
of  all  nations  in  like  manner  with  the  Atlantic.  In 
cidental  to  the  condition  of  national  independence 
and  sovereignty,  the  rights  of  interior  navigation  of 
their  rivers  will  belong  to  each  of  the  American  na 
tions  within  its  own  territories."  In  this  letter  is 
the  germ  of  that  portion  of  the  Monroe  Doctrine  re 
lating  to  non-colonization.  Indeed,  its  paternity 
belongs  to  Mr.  Adams.  It  rests  on  the  assertion  that 
the  continent  is  "occupied  by  civilized  nations"  and 
is  "accessible  to  Europeans  and  each  other  on  that 
footing  alone." 

When  Mr.  Rush  made  known  Mr.  Adams's  letter 
to  the  British  Cabinet,  he  asserts  that  they  totally 
denied  the  correctness  of  the  position,  and  that "  Great 
Britain  considered  the  whole  of  the  unoccupied  parts 
of  America  as  being  open  to  her  future  settlements 
in  like  manner  as  heretofore" ;  that  is,  "  by  priority 
of  discovery  and  occupation." 

Four  months  after  this  letter,  President  Monroe, 
in  his  annual  message,  speaking  of  the  North-western 
Boundary  and  the  proposed  arrangements  with  Great 
Britain  and  Russia,  uses  this  language:  "In  the  dis 
cussions  to  which  this  interest  has  given  rise,  and  in 
the  arrangements  in  which  they  may  terminate,  the 


THE  MONROE  DOCTRINE  299 

occasion  has  been  judged  proper  for  asserting,  as  a 
principle  in  which  the  rights  and  interests  of  the 
United  States  are  involved,  that  the  American  con 
tinents,  by  the  free  and  independent  condition  which 
they  have  assumed  and  maintained,  are  henceforth 
not  to  be  considered  as  subjects  for  future  coloniza 
tion  by  any  European  power."  In  taking  this  posi 
tion,  Mr.  Monroe  did  not  intend  to  establish  a  new 
system  for  America,  defensive  and  exclusive  against 
European  powers,  but  intended  only  to  apply  to  the 
state  of  things  in  America  a  recognized  principle  of 
public  law.  The  only  question  can  be,  whether  the 
state  of  things  in  America  did  or  did  not,  at  that  time, 
warrant  the  application  of  the  principle.  In  other 
words,  was  any  part  of  the  country  so  unoccupied 
and  unappropriated  by  any  civilized  power  as  to  be 
open  to  new  acquisition  on  that  ground;  or  was  the 
whole  continent  so  occupied  and  held  as,  upon  prin 
ciples  of  public  law,  to  exclude  the  acquisition  of  sov 
ereign  title  by  virtue  of  subsequent  occupation?  The 
question  presented  was,  in  fact,  one  of  political  geo 
graphy. 

It  is  known  that  neither  Great  Britain  nor  Russia 
assented  to  the  position  taken  by  Mr.  Adams,  and 
now  publicly  announced  by  the  President  under  his 
advice;  for  those  powers  had  plans  of  extending  their 
colonization  and  occupation,  and  contended  that 
portions  of  the  country  were  still  open  thereto  upon 
principles  of  public  law.  In  1825-26,  Mr.  Adams,  as 
President,  had  occasion  to  explain  this  declaration 
by  reason  of  the  proposal  for  the  Panama  Congress; 
and,  in  the  debates  upon  the  Panama  mission,  the 
subject  was  fully  discussed.  The  Congress  at  Panama 
was  proposed  by  the  Spanish-American  States,  whose 


300  RICHARD  HENRY  DANA,  JR. 

independence  the  United  States  had  acknowledged, 
but  who  were  still  nominally  at  war  with  Spain.  Their 
purpose  was  to  form  an  alliance  among  the  American 
States  for  self-defence,  for  the  maintenance  of  peace 
upon  the  continent,  and  to  settle  some  principles  of 
public  law  to  govern  their  relation  with  each  other. 
The  United  States  was  invited  to  take  part  in  the 
Congress;  and  the  proposal  was  well  received  by 
President  Adams  and  Mr.  Clay,  his  Secretary  of  State. 
Among  the  measures  to  be  adopted  by  the  Congress, 
the  following  was  officially  announced  by  Colombia, 
then  the  leading  Spanish-American  power:  "To  take 
into  consideration  the  means  of  making  effectual  the 
declaration  of  the  President  of  the  United  States  re 
specting  any  ulterior  design  of  a  foreign  power  to 
colonize  any  portion  of  this  continent,  and  also  the 
means  of  resisting  all  interference  from  abroad  with 
the  domestic  concerns  of  the  American  governments." 
A  strong  opposition  arose  in  Congress  to  the  Panama 
mission,  and  Mr.  Adams  offered  an  explanation  of  its 
probable  results.  In  his  special  message  to  the  Senate 
of  Dec.  26,  1825,  he  says:  "An  agreement  between 
all  the  parties  represented  at  the  meeting,  that  each 
will  guard  by  its  own  means  against  the  establishment 
of  any  future  European  colony  within  its  borders, 
may  be  found  advisable.  This  was  more  than  two 
years  since  announced  by  my  predecessor,  as  a  prin 
ciple  resulting  from  the  emancipation  of  both  the 
American  continents."  Again,  in  his  message  to  the 
House  of  Representatives,  of  March  26,  1826,  refer 
ring  to  this  doctrine  of  non-colonization  in  Mr.  Mon 
roe's  message  of  1823,  he  says:  "The  principle  had 
first  been  assumed  in  the  negotiation  with  Russia.  It 
rested  upon  a  course  of  reasoning  equally  simple  and 


THE  MONROE  DOCTRINE  301 

conclusive.  With  the  exception  of  the  existing  Euro 
pean  colonies,  which  it  was  in  nowise  intended  to 
disturb,  the  two  continents  consisted  of  several 
sovereign  and  independent  nations,  whose  territories 
covered  their  whole  surface.  By  this  their  independent 
condition,  the  United  States  enjoyed  the  right  of 
commercial  intercourse  with  every  part  of  their  pos 
sessions.  To  attempt  the  establishment  of  a  colony 
in  those  possessions  would  be  to  usurp,  to  the  exclu 
sion  of  others,  a  commercial  intercourse  which  was 
the  common  possession  of  all." 

The  Spanish-American  States  had  appeared  to 
understand  Mr.  Monroe's  message  as  "a  pledge," 
by  the  United  States,  to  the  other  American  States, 
of  mutual  support  in  maintaining  this  doctrine;  and 
to  consider  the  United  States  bound  to  join  with  them 
in  some  alliance,  offensive  and  defensive,  for  that 
purpose.  Congress  was  unwilling  to  adopt  the  policy 
of  entangling  alliances.  A  resolution  of  the  House 
of  Representatives  declared  that  the  United  States 
"ought  not  to  become  parties  with  the  Spanish- 
American  republics,  or  either  of  them,  to  any  joint 
declaration  for  the  purpose  of  preventing  the  inter 
ference  of  any  of  the  European  powers  with  their 
independence  or  form  of  government,  or  to  any  com 
pact  for  the  purpose  of  preventing  colonization  upon 
the  continents  of  America ;  but  that  the  people  of  the 
United  States  should  be  left  free  to  act,  in  any  crisis, 
in  such  a  manner  as  their  feelings  of  friendship  to 
wards  these  republics,  and  as  their  own  honor  and 
policy  may  at  the  time  dictate." 

The  Senate  confirmed  the  appointment  of  two 
commissioners  for  the  Panama  Congress,  and  the 
House  of  Representatives  voted  the  appropriations; 


302  RICHARD  HENRY  DANA,  JR. 

but,  owing  to  the  death  of  one  commissioner  and 
the  delay  of  the  other,  the  United  States  was  not 
represented  at  the  first  session  of  the  Congress,  and 
a  second  session  was  never  held.  This  was  owing  in 
part  to  the  disturbed  condition  of  the  Spanish-Ameri 
can  States,  but  more  to  their  disappointment  at  the 
attitude  of  the  United  States.  Whatever  view  the  ad 
ministration  of  Mr.  Adams  may  first  have  taken,  and 
however  popular  the  proposal  of  the  mission  may 
have  been  at  first,  it  is  certain  that  the  administration 
at  last  came  to  a  narrow  limitation  of  the  project; 
and  the  public  judgment  soon  settled  upon  an  oppo 
sition  to  the  entire  scheme.  The  opposition  in  Con 
gress  successfully  contended,  that,  if  the  Panama 
meeting  amounted  to  anything,  it  would  tend  to  es 
tablish  on  this  continent,  in  the  interests  of  republi 
canism,  the  same  kind  of  system  which  had  been 
established  in  Europe  in  the  interests  of  despotism, 
and  that  the  United  States  would  necessarily  be  its 
protector,  and  the  party  responsible  to  the  world; 
while  the  Spanish-American  States  would  get  the  bene 
fits  of  a  system  of  mutual  protection  which  the  United 
States  did  not  need. 

In  criticising  Mr.  Adams's  language  in  his  message 
of  December  26, — "Each  shall  guard, by  its  ownmeans, 
against  the  establishment  of  any  future  European 
colony  within  its  borders,"  which,  he  says,  was  the 
principle  announced  by  his  predecessor,  —  it  is  often 
said  that  he  reduced  this  branch  of  the  Monroe  Doc 
trine  to  insignificance,  as  this  is  no  more  than  States 
will  naturally  and  necessarily  do,  without  compact. 
But  this  is  not  a  correct  or  sufficient  view  of  the  sub 
ject.  Mr.  Monroe  had  equally  assumed,  in  1823, 
that  a  sovereign  State  would  not  permit  other  sov- 


THE  MONROE  DOCTRINE  303 

ereign  States  to  appropriate  its  territory  by  coloniza 
tion.  On  that  assumption,  he  declared  simply  the 
fact,  that  the  whole  continent  was  within  the  territory 
of  some  responsible  State,  and  not  ferce  naturae,  and 
so  open  to  appropriation.  It  was  this  fact  that  was, 
at  the  time,  disputed  by  European  powers.  Mr.  Mon 
roe  did  not  declare  or  intimate,  directly  or  indirectly, 
a  policy  —  what  the  United  States  would  do  if  a  Eu 
ropean  power  should  attempt  colonization  within 
what  he  claimed  to  be  our  territory;  still  less,  what 
we  would  do  if  a  European  power  should  attempt  it 
in  what  we  held  to  be  the  territory  of  some  other 
American  sovereign  State.  Our  action,  in  either  event, 
was  left  to  be  determined  upon  when  the  case  should 
arise.  When,  therefore,  the  administration  and  Con 
gress  refused  to  make  any  compact,  or  commit  the 
government  in  advance  by  pledge  or  understanding, 
to  any  system  of  cooperation  in  a  future  contingency, 
they  did  not  abandon  or  qualify  Mr.  Monroe's  posi 
tion.  The  proper  view,  therefore,  of  Mr.  Adams's 
proposal  is,  that  each  State  represented  at  the  Con 
gress  should  make,  for  itself,  the  declaration  which 
Mr.  Monroe  made  for  the  United  States  in  1823,— 
that  is,  that  its  territories  were  not  open  to  appropria 
tion  by  colonization,  —  and  pledge  itself  to  resist  any 
attempts  in  that  direction.  Even  this  proposal,  simple 
and  inefficient  as  it  seemed,  was  objected  to,  as  liable 
to  be  construed  into  an  implied  pledge  of  assistance 
to  any  State  that  should  be  driven  to  war  to  main 
tain  it. 

Mr.  Everett,  in  his  speech,  said:  "On  one  of  these 
points,  —  the  resistance  to  colonization,  —  when  the 
southern  republics  shall  become  fully  informed  of 
the  position  of  the  United  States  in  reference  to  that 


304  RICHARD  HENRY  DANA,  JR. 

question,  most  assuredly  they  will  withdraw  the  wish, 
if  they  now  entertain  it,  to  enter  into  an  alliance  with 
us."  Mr.  Webster  said:  "We  have  a  general  interest, 
that,  through  all  the  vast  territories  rescued  from 
the  dominion  of  Spain,  our  commerce  may  find  its 
way,  protected  by  treaties  with  governments  existing 
on  the  spot.  These  views,  and  others  of  a  similar  char 
acter,  render  it  highly  desirable  to  us  that  these  new 
States  should  settle  it,  as  a  part  of  their  policy,  not 
to  allow  colonization  within  their  respective  territo 
ries.  True  indeed,  we  do  not  need  their  aid  to  assist 
us  in  maintaining  such  a  course  for  ourselves;  but  we 
have  an  interest  in  their  assertion  and  their  support 
of  the  principle  as  applicable  to  their  own  territories." 
Mr.  Clay,  then  Secretary  of  State,  in  his  despatch 
of  March  25,  1825,  to  Mr.  Poinsett,  our  Minister  to 
Mexico,  referring  to  Mr.  Monroe's  declaration  re 
specting  colonization,  says:  "Wliatever  foundation 
may  have  existed  three  centuries  ago,  or  even  at  a 
later  period,  when  all  this  continent  was  under  Eu 
ropean  subjection,  for  the  establishment  of  a  rule, 
founded  on  priority  of  discovery  and  occupation, 
for  apportioning  among  the  powers  of  Europe  parts 
of  this  continent,  none  can  now  be  admitted  as  ap 
plicable  to  its  present  condition.  There  is  no  dispo 
sition  to  disturb  the  colonial  possessions,  as  they  now 
exist,  of  any  of  the  European  powers;  but  it  is  against 
the  establishment  of  new  European  colonies  upon 
this  continent,  that  this  principle  is  directed.  The 
countries  in  which  any  such  new  establishments 
might  be  attempted,  are  now  open  to  the  enterprise 
and  commerce  of  all  Americans;  and  the  justice  or 
propriety  cannot  be  recognized  of  arbitrarily  limiting 
and  circumscribing  that  enterprise  and  commerce 


THE  MONROE  DOCTRINE  305 

by  the  act  of  voluntarily  planting  a  new  colony,  with 
out  the  consent  of  America,  under  the  auspices  of 
foreign  powers  belonging  to  another  and  a  distant 
continent.  Europe  would  be  indignant  at  an  attempt 
to  plant  a  colony  on  any  part  of  her  shores ;  and  her 
justice  must  perceive,  in  the  rule  contended  for,  only 
perfect  reciprocity." 

President  Polk,  in  his  annual  message  to  Congress, 
of  Dec.  2, 1845,  after  dealing  with  the  Oregon  bound 
ary  question,  and  defending  the  annexation  of  Texas, 
and  protesting  against  any  possible  interposition 
of  European  powers  to  prevent  it,  seeks  to  bring  into 
service  this  portion  of  the  Monroe  Doctrine.  Quoting 
the  passage  respecting  colonization,  he  says:  "In 
the  existing  circumstances  of  the  world,  the  present 
is  deemed  a  proper  occasion  to  reiterate  and  re-affirm 
the  principle  avowed  by  Mr.  Monroe,  and  to  state 
my  cordial  concurrence  in  its  wisdom  and  sound 
policy.  Existing  rights  of  every  European  nation 
should  be  respected:  but  it  is  due  alike  to  our  safety 
and  our  interests  that  the  efficient  protection  of  our 
laws  should  be  extended  over  our  whole  territorial 
limits;  and  that  it  should  be  distinctly  announced  to 
the  world  as  our  settled  policy,  that  no  future  Euro 
pean  colony  or  dominion  shall,  with  our  consent,  be 
planted  or  established  on  any  part  of  the  North- 
American  continent."  It  will  be  seen  that  Mr.  Polk 
quotes  no  part  of  Mr.  Monroe's  message  except  the 
single  paragraph  relating  to  colonization.  Professedly 
re-affirming  that,  he  states  a  broader  and  very  dif 
ferent  doctrine;  namely,  not  only  that  the  continent 
is  not  open  to  colonization,  but  that  no  European 
"dominion"  shall  be  "established"  with  our  consent 
on  any  part  of  the  North-American  continent.  This 


306  RICHARD  HENRY  DANA,  JR. 

doctrine  of  Mr.  Polk  would  require  our  consent  to 
any  acquisition  of  dominion  by  a  European  power, 
whether  by  voluntary  cession  or  transfer,  or  by  con 
quest. 

Toward  the  close  of  the  Mexican  war,  on  the  29th 
April,  1848,  Mr.  Polk  sent  a  special  message  to  Con 
gress  on  the  subject  of  Yucatan.  He  represented  that 
country  as  suffering  severely  from  an  insurrection 
of  the  native  Indians,  and  as  having  offered  to  trans 
fer  to  the  United  States  "the  dominion  and  sover 
eignty  of  the  peninsula,"  if  we  would  give  them  ma 
terial  aid  in  suppressing  the  insurrection.  He  added 
that  they  had  applied  also  to  Great  Britain  and  Spain  ; 
and  expressed  the  opinion,  that,  if  we  did  not  accept 
the  offer,  Yucatan  might  pass  under  the  control  of 
one  of  those  powers.  He  then  refers  to  the  Monroe 
Doctrine  as  opposed  to  the  transfer  of  American 
territory  to  any  European  power,  and  to  the  exten 
sion  of  their  system  to  this  hemisphere;  quotes  his 
own  message  of  Dec.  2,  1845  (cited  above);  and 
recommends  Congress  to  take  measures  to  prevent 
Yucatan  becoming  a  European  colony,  which,  he 
says,  "in  no  event  could  be  permitted  by  the  United 
States."  A  bill  was  immediately  introduced  into  the 
Senate,  authorizing  the  raising  of  an  additional  mil 
itary  force  to  enable  the  President  to  "take  tempo 
rary  military  possession"  of  Yucatan,  and  to  aid  its 
people  against  the  Indians.  A  motion  was  made  to 
amend  the  bill  so  as  to  change  entirely  the  charac 
ter  of  the  proposed  step.  The  amendment  was  upon 
the  theory  that  Yucatan  might  be  treated  by  us  as 
a  part  of  the  republic  of  Mexico,  and  occupied  by 
us  as  part  of  our  war  against  that  power.  This  was 
supported  by  Mr.  Jefferson  Davis;  but  the  adminis- 


THE  MONROE  DOCTRINE  307 

tration  party  generally,  led  by  Mr.  Cass  and   Mr. 
Hannegan,  favored  the  original  bill,  and  supported 
it  on  the  ground  of  preventing  by  anticipation  a  new 
European  dependency.   The  opposition  resisted  both 
schemes  throughout.   While  the  discussion  was  going 
on,  news  arrived  of  a  treaty  between  the  Indians  and 
whites  in  Yucatan;  and  the  project  of  taking  posses 
sion  was  abandoned.    During  this  debate,  Mr.  Cal- 
houn  made  a  speech  upon  the  Monroe  Doctrine,  sig 
nificant  from  the  fact  that  he  was  a  leading  member 
of  Mr.  Monroe's  Cabinet  at  the  time  of  the  mes 
sage,  and  at  this  time  the  only  survivor.   He  gave  the 
history  of   the  declaration  respecting   foreign  inter 
position  in  American  affairs,  now  well  known,  and 
referred  to  hereafter;  its  origin  in  the  attempt  to  ex 
tend  the  arm  of  the  Holy  Alliance  over  Spanish  Amer 
ica;  and  states  that  the  subject  was  gravely  consid 
ered  by  the  Cabinet,  on  receiving  from  Mr.  Rush  Mr. 
Canning's  proposal,  and  that  the  language  in  which 
the  declaration  was  couched  was  carefully  weighed 
and  agreed  upon  by  the  entire  Cabinet.    These  are 
the  passages  at  the  close  of  the  message,  in  connec 
tion  with  the  affairs  of    Spanish  America,  relating 
to  attempts  of  the  European  powers  to  extend  their 
system  over  this  hemisphere,  and  interpositions  to 
oppress  or  control  the  destiny  of  any  American  State. 
As  to  the  paragraph  relating  to  colonization,  intro 
duced  into  the  early  part  of  the  message,  in  connec 
tion  with  the  British  and  Russian  boundaries,  Mr. 
Calhoun  says  that  was  not  submitted  to  the  Cabinet, 
and  formed  no  part  of  the  principle  they  intended 
to  announce;  but  was  a  disconnected  position  taken 
by  Mr.  Adams,  in  the  negotiations  under  his  sole 
charge  with  Russia  and  England,  which  the  President 


308  RICHARD  HENRY  DANA,  JR. 

introduced  into  his  message,  by  Mr.  Adams's  advice, 
in  that  connection.  Mr.  Calhoun  treated  it  as  limited 
to  acquisitions  of  sovereignty  over  unoccupied  re 
gions  of  country  by  virtue  of  prior  colonization,  and 
as  having  no  relation  to  such  transfers  of  acknow 
ledged  sovereign  territory  as  may  be  made  by  co 
ercion  or  voluntary  agreement  between  civilized 
nations.  He  says:  "The  word  'colonization'  has  a 
specific  meaning.  It  means  the  establishment  of  a 
settlement,  by  emigrants  from  the  parent  country, 
in  a  territory  either  uninhabited,  or  from  which  the 
inhabitants  have  been  partially  or  wholly  expelled." 
No  doubt,  the  same  objections  existed  against  new 
foreign  dominions,  however  they  might  be  derived; 
but  the  paragraph  only  declared  against  deriving 
dominion  from  colonization,  as  not  admissible  in  the 
condition  which  the  continent  had  reached.  As  to 
the  other  and  more  general  doctrine  of  opposition  to 
European  intervention,  Mr.  Calhoun  took  the  ground 
which  had  been  taken  in  the  Panama  discussion,  and 
which  the  opposition  was  then  holding  in  the  case 
before  the  Senate, -- that  the  United  States  was 
under  no  pledge  to  intervene  against  intervention, 
but  was  to  act  in  each  case  as  policy  and  justice  re 
quired;  and  that,  in  this  case,  there  was  no  proof  of 
a  danger  of  actual  transfer  to  a  European  power,  or 
if  there  were,  that  the  object  was  important  enough 
to  us  to  warrant  our  intervention. 

At  the  time  Mr.  Calhoun  made  this  speech,  as  has 
been  said,  neither  Mr.  Adams  nor  Mr.  Monroe  was 
living;  but  Mr.  Calhoun  referred  back  to  his  speech 
on  the  Oregon  question,  where  he  says  he  made  the 
statement  that  the  clause  respecting  colonization  was 
not  submitted  to  the  Cabinet.  "I  stated  it  in  order 


THE  MONROE  DOCTRINE  309 

that  Mr.  Adams  might  have  an  opportunity  of  deny 
ing  it,  or  asserting  the  real  state  of  the  facts.  He 
remained  silent;  and  I  presume  that  my  statement  is 
correct."  (Calhoun's  Works,  iv,  454.)  Mr.  Calhoun's 
statement  derives  confirmation  also  from  the  fact 
that  this  subject  of  colonization  is  not  noticed  in  the 
correspondence,  hereafter  cited,  between  Mr.  Monroe 
and  Mr.  Jefferson,  to  whom  the  subject  of  a  declara 
tion  had  been  referred  by  Mr.  Monroe. 

In  explanation  of  this  movement  respecting  Yuca 
tan,  and  the  attempt  to  invoke,  in  its  aid,  the 
popularity  of  the  Monroe  Doctrine,  it  should  be  re 
membered  that  the  slave-power  had  obtained  an 
ascendency  in  the  counsels  of  the  nation;  that  Mr. 
Folk's  administration  was  devoted  to  its  interests; 
and  that  its  purpose  was  to  add  slave  States  to  the 
Union  by  extending  our  territory  southward,  and, 
eventually,  by  the  acquisition  of  Cuba.  It  was  not 
politic,  with  reference  to  its  Northern  adherents,  to 
avow  the  motive;  and  its  movements  were  made 
under  the  color  of  preventing  foreign  intervention  or 
the  acquisition  of  foreign  dominion,  and  under  the 
sanction  of  a  popular  tradition.  Mr.  Calhoun  not 
only  saw  that  the  Monroe  Doctrine  was  perverted, 
but  believed  that  the  cause  of  slavery  extension 
would  be  perilled  by  involving  the  country  in  foreign 
complications  in  its  behalf,  on  novel  and  doubtful 
principles. 

A  careful  examination  of  this  history,  from  the  first 
letters  of  Mr.  Adams  to  Mr.  Rush  and  Mr.  Middle- 
ton,  in  1823,  to  the  close  of  the  Yucatan  debate,  will 
show  that  the  general  object  of  Mr.  Adams  was  to 
prevent  the  establishment  on  this  continent  of  new 
colonial  dependencies  of  European  powers.  These 


310  RICHARD  HENRY  DANA,  JR. 

were  objectionable  by  reason  of  the  restrictions  and 
exclusions  on  commerce  and  navigation  which,  to 
that  time,  formed  part  of  the  European  colonial  sys 
tems,  especially  when  such  colonies  lay  at  the  mouth 
of  a  river  occupied  above  by  American  colonies,  or 
the  converse;  and  by  reason  of  the  totally  different 
political  systems  of  which  they  would  become  a  part, 
as  distant  from  our  own  in  principle  as  in  geographic 
space.  It  was  not  necessary  to  declare  that  one  State 
shall  not  appropriate  by  colonization  part  of  the  re 
cognized  territory  of  another  State.  That  would  be 
an  act  of  war,  the  world  over.  It  was  not  necessary 
to  take  the  new  and  peculiar  position,  that,  if  any 
parts  of  this  continent  were  lying  ferce  naturce  and 
beyond  the  recognized  limits  of  a  civilized  State,  they 
still  should  be  closed  to  the  colonization  of  any  but 
the  independent  States  of  this  continent:  excluding 
not  only  European  States  unconnected  with  the  con 
tinent,  but  those  that  now  had  possessions  here.  Mr. 
Adams  thought  the  end  could  be  attained  by  declar 
ing  that  no  part  of  the  continent  was  in  that  condi 
tion;  that  it  was  all,  in  his  own  words,  "occupied  by 
civilized  nations,"  and  "accessible  to  Europeans  and 
each  other  on  that  footing  alone."  It  will  be  seen  that 
this  declaration  has  ceased  to  be  of  much  consequence, 
as  no  doubt  can  now  be  made  that  such  is  the  present 
condition  of  the  continent.  By  treaties  and  long  pos 
session,  the  boundaries  of  the  continent  have  been 
adjusted,  among  the  American  States  and  the  pre 
viously  existing  foreign  colonies,  upon  the  theory  of 
including  all  parts  of  the  continent  within  the  do 
main  of  a  recognized  State,  from  the  Polar  Seas  to 
the  Straits  of  Magellan.  If  any  portion  of  an  Ameri 
can  State  should  hereafter  become  a  foreign  depend- 


THE  MONROE  DOCTRINE  311 

ency,  it  must  be  as  a  result  of  coercion  or  of  volun 
tary  compact,  and  not  by  virtue  of  title  founded  on 
appropriation  by  recent  primary  occupation. 

In  the  debates  in  the  Senate  of  the  United  States 
in  1855-56,  on  the  construction  to  be  given  to  the 
Clayton-Bulwer  treaty  of  1850,  there  was  some  dis 
cussion  as  to  the  effect  of  the  phrase  "occupy  and 
colonize."  That  treaty,  which  was  intended  to  se 
cure  an  inter-oceanic  transit  across  the  Isthmus,  and, 
for  that  purpose,  to  maintain  the  neutrality  of  the 
region  in  use,  contained  this  clause:  "The  govern 
ments  of  the  United  States  and  Great  Britain  hereby 
declare,  that  neither  one  nor  the  other  will  ever  oc 
cupy  or  fortify  or  colonize,  or  assume  or  exercise  any 
dominion  over,  Nicaragua,  Costa  Rica,  the  Mosquito 
coast,  or  any  part  of  Central  America;  nor  will  either 
make  use  of  any  protection  which  either  affords  or 
may  afford,  or  any  alliance  which  either  has  or  may 
have  to  or  with  any  State  or  people,  for  the  purpose 
of  erecting  or  maintaining  any  such  fortifications,  or 
of  occupying,  fortifying,  or  colonizing  Nicaragua, 
Costa  Rica,  the  Mosquito  coast,  or  any  part  of  Cen 
tral  America,  or  of  assuming  or  exercising  dominion 
over  the  same."  The  British  Government  took  the 
position  that  this  clause  related  only  to  future  acts, 
and  did  not  embrace  places  in  their  possession  at  the 
time  the  treaty  was  made.  This  construction  was 
rejected  by  the  United  States.  The  words  "fortify 
or  colonize,  or  assume  .  .  .  dominion  over,"  doubt 
less  look  solely  to  the  future.  The  word  "occupy" 
may  be  ambiguous.  It  has,  in  the  Law  of  Nations,  a 
technical  sense,  derived  from  the  Roman  law,  signi 
fying  the  taking  original  possession  of  anything  not 
at  the  time  in  possession,  and  therefore  open  to  ap- 


312  RICHARD  HENRY  DANA,  JR. 

propriation,  —  as  of  animals  ferce  natures,  or  of  things 
derelict,  &c.;  and,  when  applied  to  territory,  signify 
ing  the  acquisition  of  sovereign  title  by  original  occu 
pation  of  a  place  not  at  the  time  within  the  occupa 
tion  and  jurisdiction  of  a  recognized  sovereignty. 
But,  in  its  general  and  popular  sense,  it  signifies  merely 
the  act  or  condition  of  possessing:  as  successive  ten 
ants  are  said  to  occupy  a  house,  or  a  military  force  a 
town.  In  the  former  sense,  the  word  would  be  limited 
to  future  acts;  while,  in  the  latter  sense,  it  would 
not.  But  the  American  argument  did  not  rest  on  the 
character  of  one  word,  but  on  the  sense  of  the  entire 
clause,  especially  as  colored  by  the  words  *'  exercise 
dominion." 

We  now  proceed  to  examine  that  distinct  branch 
of  the  Monroe  Doctrine  which  relates  to  European 
intervention  in  American  affairs. 

The  result  of  the  congresses  at  Laybach  and  Verona 
was  an  alliance  of  Russia,  Prussia,  Austria,  and  France ; 
the  ostensible  object  of  which  was  to  preserve  the 
peace  of  Europe,  and  to  put  down  conspiracies  against 
established  power,  consecrated  rights,  and  social 
order:  but,  as  the  allies  acknowledged  no  legitimate 
basis  of  right  and  order  except  the  existing  heredi 
tary  sovereign  houses  of  Europe,  the  practical  result 
was  a  combination  of  forces  against  all  changes  in 
the  direction  of  liberal  institutions  not  voluntarily 
made  by  the  sovereigns.  In  accordance  with  the 
spirit  of  this  alliance,  the  movements  for  free  con 
stitutions  in  1821  in  Spain,  Naples,  and  Piedmont 
were  put  down  by  armed  intervention,  and  absolutism 
re-instated.  At  this  time,  the  Spanish  colonies  in 
America,  after  years  of  warfare,  had  substantially 
secured  their  independence,  which  had  been  recog- 


THE  MONROE  DOCTRINE  313 

nized  by  the  United  States;  but  Spain  still  asserted 
her  claim;  and  the  independence  of  the  provinces  had 
not  been  acknowledged  by  Great  Britain  diplomat 
ically,  though  she  had  sent  consuls  to  their  principal 
ports.  In  1823,  to  carry  out  the  purposes  of  the  Holy 
Alliance,  France  invaded  Spain,  to  suppress  the  con 
stitutional    government    of    the    Cortes    established 
there,  and  restore  absolutism  in  the  person  of  Ferdi 
nand  VII.    As  the  success  of  the  French  invasion 
became  certain,  there  were  signs  that  the  parties  to 
the  Holy  Alliance  intended  to  go  further,  and  lend 
their  aid  to  Ferdinand  VII  to  restore  his  dominion 
over  the  Spanish-American  provinces.    The  fears  of 
this  course  were  justified  by  the  previous  language 
of  the  Holy  Alliance.    In  the  Laybach  circular  of 
May   12,   1821,  they  distinctly  declared  that  they 
regarded  "as  equally  null,  and  disallowed  by  the 
public  law  of  Europe,  any  pretended  reform  effected 
by  revolt  and  open  force";  and  in  their  circular  of 
Dec.  5,  1822,  respecting  the  constitutional  govern 
ment  in  Spain,  they  declared  their  resolution  "to 
repel  the  maxim  of  rebellion,  in  whatever  place  or 
under  whatever  form  it  might  show  itself";  thus 
repeating  their  claim  made  at  Troppau,  "that  the 
European  powers  have  an  undoubted  right  to  take 
a  hostile  attitude  in  regard  to  those  States  in  which 
the  overthrow  of  the  government  might  operate  as 
an  example."   England  professed,  also,  to  see  indica 
tions  that  France  intended  to  be  compensated  for 
her  effective  intervention,  by  a  cession  of  some  Amer 
ican  province,  and  Cuba  was  the  suspected  reward. 
Great  Britain,  who  had  never  been  party  to  this 
alliance,  and  protested  against  the  intervention  of 
1821,  took  special  umbrage  at  the  French  invasion 


314  RICHARD  HENRY  DANA,  JR. 

of  Spain,  her  late  ally,  from  whose  borders  she  had, 
only  ten  years  before,  expelled  the  French  armies. 
There  was  a  strong  popular  inclination  in  England 
to  make  this  invasion  a  cause  of  war;  but  this  was 
not  seconded  by  the  ministry,  who  betook  themselves 
to  diplomatic  efforts  to  defeat  the  schemes  of  the 
continental  powers.  The  French  Government,  on  its 
part,  had  its  suggestion  that  the  British  Cabinet  was 
determined  to  send  a  squadron,  and  take  possession 
of  Cuba.  The  people  of  Cuba,  already  divided  be 
tween  the  parties  of  the  king  and  the  Cortes,  and 
terrified  by  symptoms  of  slave  insurrections,  had 
among  them  large  numbers  who,  dissatisfied  with 
Spanish  rule,  looked  to  other  powers  for  protection, 
-  some  to  Great  Britain,  but  far  the  larger  part  to 
the  United  States.  About  September,  1822,  the  lat 
ter  party  sent  a  secret  agent  to  confer  with  President 
Monroe.  They  declared,  that,  if  the  United  States 
Government  would  promise  them  protection,  and  ul 
timate  admission  into  the  Union,  a  revolution  would 
be  made  to  throw  off  the  Spanish  authority,  of  the 
success  of  which  they  had  no  doubt.  While  this  pro 
position  was  before  Mr.  Monroe's  Cabinet,  he  re 
ceived  an  unofficial  and  circuitous  communication 
from  the  French  Minister,  asserting  that  his  govern 
ment  had  positive  information  of  the  design  of  Great 
Britain  to  take  possession  of  Cuba.  The  American 
Government  replied  to  the  Cuban  deputation,  that 
the  friendly  relations  of  the  United  States  with  Spain 
did  not  permit  us  to  promise  countenance  or  protec 
tion  to  insurrectional  movements,  and  advised  the 
people  of  Cuba  to  adhere  to  their  Spanish  allegiance; 
at  the  same  time  informing  them  that  an  attempt 
upon  Cuba,  by  either  Great  Britain  or  France,  would 


THE  MONROE  DOCTRINE  315 

place  the  relations  of  Cuba  with  the  United  States 
in  a  very  different  position.  Mr.  Rush  was  instructed 
to  inform  Mr.  Canning  that  the  United  States  could 
not  see  with  indifference  the  possession  of  Cuba  by 
any  European  power  other  than  Spain,  and  to  inform 
him  of  the  rumors  that  had  reached  the  Cabinet.  Mr. 
Canning  disavowed  emphatically  all  intention  on  the 
part  of  Great  Britain  to  take  possession  of  Cuba,  but 
avowed  her  determination  not  to  see  with  indiffer 
ence  its  occupation  by  either  France  or  the  United 
States;  and  proposed  an  understanding  between  the 
British,  French,  and  American  governments,  without 
any  formal  convention,  that  Cuba  should  be  left  in 
the  quiet  possession  of  Spain.  This  was  assented  to 
by  Mr.  Monroe;  but  he  had  no  communication  with 
France  on  the  subject,  leaving  that  to  the  manage 
ment  of  Great  Britain. 

As  respects  the  Spanish  colonies  which  had  been 
at  war  with  Spain  for  their  independence,  the  United 
States  were  naturally  anxious  about  the  movements 
of  the  allies;  and  Mr.  Adams  had  communicated  to 
Mr.  Rush  at  London,  in  general  terms,  the  strong 
feeling  of  the  government,  and  the  earnest  popular 
opinion  on  that  subject.  The  British  Government 
was  also  very  solicitous  to  prevent  all  intervention 
against  those  provinces  by  the  continental  powers, 
and  to  leave  them  free  to  complete  their  independ 
ence.  This  would  not  only,  with  the  arrangement 
respecting  Cuba,  defeat  the  Transatlantic  schemes 
of  France,  if  she  had  any,  and,  in  the  famous  words 
of  Mr.  Canning,  "call  the  new  world  into  existence 
to  redress  the  balance  of  the  old,"  but  would  repress 
generally  the  absolutist  powers  on  the  continent, 
avenge  the  affront  to  Great  Britain  by  the  invasion 


316  RICHARD  HENRY  DANA,  JR. 

of  Spain,  and  procure  for  England  the  benefit  of  an 
unrestricted  commerce  with  Spanish  America.  Mr. 
Canning  feared  that  a  formal  recognition  of  the  in 
dependence  of  those  colonies  might  involve  England 
in  a  war  with  the  continental  powers ;  but  was  confi 
dent  that  their  independence  would  be  secured  if  all 
intervention  or  hope  of  intervention  in  aid  of  Spain 
could  be  effectually  precluded.  With  this  view,  Mr. 
Canning,  in  August  and  September,  1823,  urged  upon 
Mr.  Rush  a  combined  declaration  by  Great  Britain 
and  the  United  States  to  the  effect,  that,  w^hile  they 
aimed  at  the  possession  of  no  portion  of  the  Spanish 
colonies  for  themselves,  and  would  not  obstruct  any 
amicable  negotiations  between  the  colonies  and  the 
mother  country,  they  could  not  see  with  indifference 
the  intervention  of  any  foreign  power,  or  the  transfer 
to  such  power  of  any  of  the  colonies.  In  support  of 
his  request,  Mr.  Canning  stated  that  a  proposal 
would  be  made  for  a  European  Congress,  to  settle 
the  affairs  of  Spanish  America;  and  said  that  Great 
Britain  would  take  no  part  in  it,  except  upon  the 
terms  that  the  United  States  should  be  represented. 
Mr.  Rush  replied,  as  to  the  Congress,  that  it  was  the 
traditional  policy  of  the  United  States  to  take  no 
part  in  European  politics;  and,  having  no  instructions 
from  his  government,  said  he  would  still  take  the 
responsibility  of  joining  in  the  declaration,  if  Great 
Britain  would  first  acknowledge  the  independence  of 
the  colonies.  Mr.  Canning  not  being  ready  to  take 
this  decisive  step,  the  proposed  joint  declaration  was 
never  made;  but  Mr.  Rush  communicated  the  pro 
posal  to  his  government;  the  result  of  which  was  the 
celebrated  declaration  against  European  intervention 
in  Mr.  Monroe's  annual  message  of  Dec.  2,  1823. 


THE  MONROE  DOCTRINE  317 

In  Mr.  Monroe's  Cabinet  at  that  time,  John  Quincy 
Adams  was  Secretary  of  State,  and  Mr.  Calhoun  Sec 
retary  of  War;  and,  beside  the  advice  derived  from 
them,  Mr.  Monroe  laid  the  subject  of  Mr.  Canning's 
proposal  before  Mr.  Jefferson,  --then  in  retirement, 
-  and  asked  his  opinion.  Mr.  Jefferson  replied  by 
an  elaborate  letter,  of  24  October,  1823.  (Jefferson's 
Life,  iii,  491.)  He  says:  "Our  first  maxim  should  be, 
never  to  entangle  ourselves  in  the  broils  of  Europe; 
our  second,  never  to  suffer  Europe  to  intermeddle 
with  Cisatlantic  affairs."  Referring  to  the  great 
power  Great  Britain  could  wield  for  good  or  evil  in 
these  controversies,  and  expressing  his  gratification 
at  the  stand  she  was  then  taking,  and  recognizing 
the  fact  that  we  could  not  join  in  the  declaration  if 
we  had  any  designs  upon  Cuba  or  any  American 
State  ourselves,  he  advised  Mr.  Monroe  to  join  in 
the  declaration,  which  Mr.  Jefferson  worded  thus: 
"That  we  aim  not  at  the  acquisition  of  any  of  those 
possessions;  that  we  will  not  stand  in  the  way  of  any 
amicable  arrangement  between  the  colonies  and  their 
mother  country;  that  we  will  oppose  with  all  our 
means  the  forcible  interposition  of  any  other  power 
as  auxiliary,  stipendiary,  or  under  any  other  form  or 
pretext,  and  most  especially  their  transfer  to  any 
power  by  conquest,  cession,  or  acquisition  in  any  other 
way." 

It  will  be  seen  that  the  administration  did  not  ac 
cept  Mr.  Canning's  proposal  for  a  joint  declaration, 
but  spoke  for  the  United  States  alone;  and,  in  doing 
so,  did  not  adopt  the  declaration  proposed  by  Mr. 
Canning  and  recommended  by  Mr.  Jefferson,  but 
a  very  different  one.  After  treating  of  various  other 
matters  foreign  and  domestic,  as  usual  in  the  annual 


318  RICHARD  HENRY  DANA,  JR. 

message,  Mr.  Monroe  passes,  towards  its  close,  to 
speak  of  the  efforts  in  Spain  and  Portugal  to  improve 
the  condition  of  the  people,  and  of  the  general  disap 
pointment  of  the  expectations  of  the  American  people 
in  favor  of  the  liberty  and  happiness  of  their  fellow- 
men  on  that  side  of  the  Atlantic  and  says:  "In  the 
wars  of  the  European  powers,  in  matters  relating  to 
themselves,  we  have  never  taken  any  part,  nor  does 
it  comport  with  our  policy  so  to  do.  It  is  only  when 
our  rights  are  invaded  or  seriously  menaced  that  we 
resent  injuries,  or  make  preparation  for  our  defence. 
With  the  movements  in  this  hemisphere  we  are,  of 
necessity,  more  immediately  connected,  and  by  causes 
which  must  be  obvious  to  all  enlightened  and  im 
partial  observers.  The  political  system  of  the  allied 
powers  is  essentially  different  in  this  respect  from 
that  of  America.  This  difference  proceeds  from  that 
which  exists  in  their  respective  governments.  And 
to  the  defence  of  our  own,  which  has  been  achieved 
by  the  loss  of  so  much  blood  and  treasure,  and  ma 
tured  by  the  wisdom  of  our  most  enlightened  citizens, 
and  under  which  we  have  enjoyed  an  unexampled 
felicity,  this  whole  nation  is  devoted.  We  owe  it, 
therefore,  to  candor  and  to  the  amicable  relations 
existing  between  the  United  States  and  those  powers 
to  declare,  that  we  should  consider  any  attempt  on 
their  part  to  extend  their  system  to  any  portion  of 
this  hemisphere  as  dangerous  to  our  peace  and  safety. 
With  the  existing  colonies  or  dependencies  of  any 
European  power,  we  have  not  interfered,  and  shall 
not  interfere.  But  with  the  governments  who  have 
declared  their  independence  and  maintained  it,  and 
whose  independence  we  have,  on  great  consideration 
and  on  just  principles,  acknowledged,  we  could  not 


THE  MONROE  DOCTRINE  319 

view  any  interposition  for  the  purpose  of  oppressing 
them,  or  controlling  in  any  other  manner  their  des 
tiny,  by  any  European  power,  in  any  other  light  than 
as  the  manifestation  of  an  unfriendly  disposition 
toward  the  United  States.  In  the  war  between  those 
new  governments  and  Spain,  we  declared  our  neu 
trality  at  the  time  of  their  recognition;  and  to  this 
we  have  adhered,  and  shall  continue  to  adhere,  pro 
vided  no  change  shall  occur  which,  in  the  judgment 
of  the  competent  authorities  of  this  government,  shall 
make  a  corresponding  change  on  the  part  of  the 
United  States  indispensable  to  their  security."  Then, 
speaking  of  the  recent  forcible  interposition  by  the 
allies  in  the  internal  concerns  of  Spain,  he  says:  "To 
what  extent  such  interposition  may  be  carried,  on 
the  same  principle,  is  a  question  in  which  all  inde 
pendent  powers  whose  governments  differ  from  theirs 
are  interested,  and  even  those  most  remote,  and 
surely  none  more  so  than  the  United  States.  Our 
policy  in  regard  to  Europe,  which  was  adopted  at  an 
early  stage  of  the  wars  which  have  so  long  agitated 
that  quarter  of  the  globe,  nevertheless  remains  the 
same;  which  is,  not  to  interfere  in  the  internal  con 
cerns  of  any  of  its  powers ;  to  consider  the  government 
de  facto  as  the  legitimate  government  for  us ;  to  cul 
tivate  friendly  relations  with  it;  and  to  preserve  those 
relations  by  a  frank,  firm,  and  manly  policy,  meeting 
in  all  instances  the  just  claims  of  every  power,  sub 
mitting  to  injuries  from  none.  But,  in  regard  to  these 
continents,  circumstances  are  eminently  and  con 
spicuously  different.  It  is  impossible  that  the  allied 
powers  should  extend  their  political  system  to  any 
portion  of  either  continent  without  endangering  our 
peace  and  happiness;  nor  can  any  one  believe  that 


320  RICHARD  HENRY  DANA,  JR. 

our  Southern  brethren,  if  left  to  themselves,  would 
adopt  it  of  their  own  accord.  It  is  equally  impossible, 
therefore,  that  we  should  behold  such  interposition 
in  any  form  with  indifference.  If  we  look  to  the  com 
parative  strength  and  resources  of  Spain  and  those 
new  governments,  and  their  distance  from  each  other, 
it  must  be  obvious  that  she  can  never  subdue  them. 
It  is  still  the  true  policy  of  the  United  States  to  leave 
the  parties  to  themselves,  in  the  hope  that  the  other 
powers  will  pursue  the  same  course." 

This  message  of  President  Monroe  reached  England 
while  the  correspondence  between  Mr.  Canning  and 
the  Prince  Polignac  was  in  progress;  and  it  was  re 
ceived  not  only  with  satisfaction,  but  with  enthusiasm. 
Mr.  Brougham  said:  "The  question  with  regard  to 
Spanish  America  is  now,  I  believe,  disposed  of,  or 
nearly  so;  for  an  event  has  recently  happened  than 
which  none  has  ever  dispersed  greater  joy,  exultation, 
and  gratitude  over  all  the  free  men  of  Europe:  that 
event,  which  is  decisive  on  the  subject,  is  the  language 
held  with  respect  to  Spanish  America  in  the  message 
of  the  President  of  the  United  States."  Sir  James 
Mackintosh  said:  "This  coincidence  of  the  two  great 
English  commonwealths  (for  so  I  delight  to  call  them ; 
and  I  heartily  pray  that  they  may  be  for  ever  united 
in  the  cause  of  justice  and  liberty)  cannot  be  con 
templated  without  the  utmost  pleasure  by  every  en 
lightened  citizen  of  the  earth."  This  attitude  of  the 
American  Government  gave  a  decisive  support  to  that 
of  Great  Britain,  and  effectually  put  an  end  to  the 
designs  of  the  absolutist  powers  of  the  continent  to 
interfere  with  the  affairs  of  Spanish  America.  Those 
dynasties  had  no  disposition  to  hazard  a  war  with 
such  a  power,  moral  and  material,  as  Great  Britain 


THE  MONROE  DOCTRINE  321 

and  the  United  States  would  have  presented,  when 
united  in  the  defence  of  independent  constitutional 
governments. 

It  is  to  be  borne  in  mind  that  the  declarations 
known  as  the  Monroe  Doctrine  have  never  received 
the  sanction  of  an  act  or  resolution  of  Congress;  nor 
have  they  any  of  that  authority  which  European  gov 
ernments  attach  to  a  royal  ordinance.  They  are,  in 
fact,  only  the  declarations  of  an  existing  administra 
tion  of  what  its  own  policy  would  be,  and  what  it 
thinks  should  ever  be  the  policy  of  the  country,  on  a 
subject  of  paramount  and  permanent  interest.  Thus, 
at  the  same  session  in  which  the  message  was  delivered, 
Mr.  Clay  introduced  the  following  resolution:  "That 
the  people  of  these  States  would  not  see,  without 
serious  inquietude,  any  forcible  interposition  by  the 
allied  powers  of  Europe,  in  behalf  of  Spain,  to  reduce 
to  their  former  subjection  those  parts  of  the  con 
tinent  of  America  which  have  proclaimed  and  estab 
lished  for  themselves,  respectively,  independent  gov 
ernments,  and  which  have  been  solemnly  recognized 
by  the  United  States."  But  this  resolution  was  never 
brought  up  for  action  or  discussion.  It  is  seen  also,  by 
the  debates  on  the  Panama  mission  and  the  Yucatan 
intervention,  that  Congress  has  never  been  willing  to 
commit  the  nation  to  any  compact  or  pledge  on  this 
subject,  or  to  any  specific  declaration  of  purpose  or 
methods,  beyond  the  general  language  of  the  message. 

In  the  debates  on  the  Clayton-Bulwer  treaty,  in 
1855-56,  above  referred  to,  all  the  speakers  seemed  to 
agree  to  this  position  of  the  subject.  Mr.  Clayton 
said :  "  In  reference  to  this  particular  territory,  I  would 
not  hesitate  at  all,  as  one  Senator,  to  assert  the  Mon 
roe  Doctrine  and  maintain  it  by  my  vote;  but  I  do  not 


RICHARD  HENRY  DANA,  JR. 

expect  to  be  sustained  in  such  a  vote  by  both  branches 
of  Congress.  Whenever  the  attempt  has  been  made 
to  assert  the  Monroe  Doctrine  in  either  branch  of 
Congress,  it  has  failed.  The  present  Democratic  party 
came  into  power,  after  the  debate  on  the  Panama 
mission,  on  the  utter  abnegation  of  the  whole  doctrine, 
and  stood  upon  Washington's  doctrine  of  non-inter 
vention.  You  cannot  prevail  on  a  majority,  and  I  will 
venture  to  say  that  you  cannot  prevail  on  one-third, 
of  either  house  of  Congress  to  sustain  it."  Mr.  Cass 
said :  "Whenever  the  Monroe  Doctrine  has  been  urged, 
either  one  or  the  other  house  of  Congress,  or  both 
houses,  did  not  stand  up  to  it."  Mr.  Seward  said:  "It 
is  true  that  each  house  of  Congress  has  declined  to 
assert  it;  but  the  honorable  senators  must  do  each 
house  the  justice  to  acknowledge  that  the  reason  why 
they  did  decline  to  assert  the  doctrine  was,  that  it 
was  proposed,  as  many  members  thought,  as  an  ab 
straction,  unnecessary,  not  called  for  at  the  time." 
Mr.  Mason  spoke  of  it  as  having  "never  been  sanc 
tioned  or  recognized  by  any  constitutional  authority." 
Mr.  Cass  afterwards,  in  a  very  elaborate  speech  (of 
Jan.  28, 1856),  gave  his  views  of  the  history  and  char 
acter  of  the  doctrine.  He  placed  it  upon  very  high 
ground,  as  a  declaration  not  only  against  European 
intervention  or  future  colonization,  but  against  the 
acquisition  of  dominion  on  the  continent  by  Euro 
pean  powers,  by  whatever  mode  or  however  derived; 
and  seemed  to  consider  it  as  a  pledge  to  resist  such 
a  result  by  force,  if  necessary,  in  any  part  of  the  con 
tinent.  He  says:  "We  ought  years  ago,  by  Congres 
sional  interposition,  to  have  made  this  system  of 
policy  an  American  system,  by  a  solemn  declaration; 
and,  if  we  had  done  so,  we  should  have  spared  our- 


THE  MONROE  DOCTRINE  323 

selves  much  trouble  and  no  little  mortification." 
Referring  to  Mr.  Folk's  message,  in  1845,  he  said  there 
was  then  an  opportunity  for  Congress  to  adopt  the 
doctrine,  not  as  an  abstraction,  but  on  a  practical 
point.  "We  refused  to  say  a  word;  and,  I  repeat,  we 
refused  then  even  to  take  the  subject  into  considera 
tion."  He  denied  the  correctness  of  Mr.  Calhoun's 
explanation  (vide  supra) ,  and  contended  that  the  non- 
colonization  clause  was  intended  to  be,  and  under 
stood  by  England  to  be,  a  foreclosure  of  the  whole 
continent  against  all  future  European  dominion, 
however  derived.  It  may  well  be  said,  however,  and 
such  seems  now  to  be  the  prevalent  opinion,  that  the 
complaints  of  Mr.  Cass  and  others  of  his  school,  of 
the  neglect  and  abandonment  of  the  Monroe  Doc 
trine,  apply  rather  to  their  construction  of  the  doc 
trine  than  to  the  doctrine  itself. 

That  the  declarations  in  Mr.  Monroe's  message 
arose  out  of  the  apprehension  that  the  Holy  Alliance 
sought  to  extend  its  system  to  the  American  colonies, 
and  possibly  to  independent  American  States,  there 
can  be  no  doubt.  The  only  points  made  by  Mr.  Mon 
roe  are  —  "Any  attempt  on  their  part  to  extend  their 
system  [the  political  system  of  the  Holy  Alliance]  to 
any  portion  of  this  hemisphere";  and  "Any  inter 
position  for  the  purpose  of  oppressing  them  [the 
American  States],  or  controlling  in  any  other  man 
ner  their  destiny."  It  is  observable  that  the  protest 
is  against  certain  modes  of  European  action,  and  not 
against  new  acquisitions  specifically,  nor  even  in- 
ferentially,  if  made,  for  instance,  by  treaties  in  which 
there  should  be  no  coercion  and  no  interposition  by 
third  powers,  or  by  conquest  in  a  war  not  waged  for 
the  policy  or  purpose  objected  to.  Mr.  Jefferson,  in 


324  RICHARD  HENRY  DANA,  JR. 

his  letter  above  referred  to,  had  noticed  this  subject, 
and  placed  among  the  acts  we  should  oppose  "their 
transfer  to  any  power  by  conquest,  cession,  or  acqui 
sition  in  any  way."  Still,  Mr.  Monroe's  Cabinet  made 
no  declaration  on  the  point  of  transfer  of  dominion. 
It  is  also  to  be  observed  that  Mr.  Canning's  proposi 
tion  to  Mr.  Rush  was  for  a  joint  declaration  by  the 
two  governments  of  a  double  proposition,  —  1st,  That 
they  did  not  aim  at  the  possession  of  any  portion  of 
the  Spanish  colonies  for  themselves;  and,  2d,  That 
"they  could  not  see  the  transfer  of  any  portion  of 
them  to  any  other  power  with  indifference."  This 
double  proposition,  communicated  by  Mr.  Rush  to 
the  President  and  by  him  to  Mr.  Jefferson,  and  recom 
mended  by  Mr.  Jefferson  and  laid  before  the  Cabinet 
is  still  not  adopted  in  the  message.  Confining  itself 
to  a  declaration  against  interposition  to  oppress  or 
control,  or  to  extend  the  system  of  the  Holy  Alliance 
to  this  hemisphere,  the  message  avoids  committing 
the  government  on  the  subject  of  acquisition,  either 
by  the  United  States  or  the  European  powers,  and 
whether  by  voluntary  cession  or  conquest.  Possibly 
the  administration  may  have  paused  at  Mr.  Jeffer 
son's  caution  in  his  letter  referred  to:-  "But  we 
must  first  ask  ourselves  a  question,  —  Do  we  wish  to 
acquire  any  one  or  more  of  the  Spanish  provinces? 
-  before  we  can  unite  in  the  proposed  joint  declara 
tion."  Mr.  Jefferson  confesses  that,  in  his  opinion, 
Cuba  would  be  "the  most  interesting  addition  that 
could  ever  be  made  to  our  system  of  States";  yet  is 
willing,  in  view  of  the  great  advantages  to  be  gained 
by  the  joint  declaration,  to  forego  Cuba.  The  slave- 
holding  interest  was  clearly  looking  to  Cuba,  not  only 
as  an  addition  to  its  political  power  in  the  Union,  but 


THE  MONROE  DOCTRINE  325 

to  prevent  abolition  of  slavery  there  by  some  other 
power;  and  it  is  known  that  Mr.  Adams  had  a  no 
ticeable  leaning  in  favor  of  its  importance  to  us  in  a 
military  and  commercial  view.  The  Texas  question 
was  already  looming  in  the  distance;  and  it  was  but 
three  years  since  we  had  acquired  Florida,  and  but 
twenty  years  since  we  had  purchased  the  vast  Louisi 
ana  territory.  Twenty-two  years  after  this,  we  an 
nexed  Texas;  and,  twenty-five  years  after,  we  ac 
quired  by  conquest  California  and  New  Mexico;  and, 
for  several  years  before  the  civil  war  of  1861,  the 
lave-owner  in  the  Union  was  exerting  itself  to  annex 
Cuba.  It  is  true  the  government  had,  as  has  been 
seen,  exchanged  declarations  with  England  as  to 
Cuba;  but  then,  as  later,  when,  in  1854,  the  tripartite 
alliance  for  the  retention  of  Cuba  by  Spain  was  pro 
posed,  we  were  not  willing  to  commit  ourselves  to 
absolute  guaranties  on  that  point:  and  a  successful 
revolution  in  Cuba  might  have  made,  at  any  time, 
an  opening  for  her  annexation.  When  we  compare 
the  declarations  in  the  message  with  the  joint  decla 
ration  proposed  by  Mr.  Canning  and  recommended 
by  Mr.  Jefferson,  and  consider  our  own  prior  history 
and  our  then  position,  it  certainly  is  a  fair  inference 
that  the  administration  purposely  avoided  any  spe 
cific  and  direct  statement  as  to  transfer  of  dominion 
by  competent  parties,  in  the  way  of  treaty,  or  by 
conquest  in  war. 

In  further  explanation  of  the  Monroe  Doctrine,  it 
is  to  be  noticed  that  it  is  correctly  called  a  doctrine, 
and  no  more.  There  is  no  intimation  what  the  United 
States  will  do  in  case  of  European  interposition,  or 
what  means  it  will  take  to  prevent  it.  The  United 
States  have  steadily  refused  to  enter  into  any  arrange- 


826  RICHARD  HENRY  DANA,  JR. 

ment  with  the  other  American  States  for  establishing 
a  continental  system  on  that  point,  or  for  mutual 
defiance,  or  even  to  commit  themselves  in  the  way 
of  pledge  or  promise.  When  the  Spanish- American 
States  wished  to  treat  the  message  of  1823  as  a 
"pledge"  to  them  for  the  future,  that  construction 
of  it  was  successfully  resisted  by  the  opposition,  how 
ever  favorably  it  may  be  thought  Mr.  Adams  and 
his  Cabinet  at  first  regarded  it.  And  public  opinion 
may  be  considered  as  settled  on  the  point  that  the 
action  of  the  nation,  in  any  case  that  may  arise,  must 
be  unembarrassed  by  pledge  or  compact;  and,  fur 
ther,  as  equally  settled,  against  the  introduction  of 
anything  approaching  the  nature  of  a  Holy  Alliance 
for  this  continent,  though  it  be  in  the  interests  of 
republican  institutions. 

It  has  sometimes  been  assumed  that  the  Monroe 
Doctrine  contained  some  declaration  against  any 
other  than  democratic-republican  institutions  on 
this  continent,  however  arising  or  introduced.  The 
message  will  be  searched  in  vain  for  any  thing  of  the 
kind.  We  were  the  first  to  recognize  the  imperial 
authority  of  Don  Pedro  in  Brazil,  and  of  Iturbide  in 
Mexico;  and  more  than  half  the  northern  continent 
was  under  the  sceptres  of  Great  Britain  and  Russia; 
and  these  dependencies  would  certainly  be  free  to 
adopt  what  institutions  they  pleased,  in  case  of  suc 
cessful  rebellion,  or  of  peaceful  separation  from  their 
parent  States. 

As  a  summary  of  this  subject,  it  would  seem  that 
the  following  positions  may  be  safely  taken:  I.  The 
declarations  upon  which  Mr.  Monroe  consulted  Mr. 
Jefferson  and  his  own  Cabinet  related  to  the  inter 
position  of  European  powers  in  the  affairs  of  Ameri- 


THE  MONROE  DOCTRINE  327 

can  States.  II.  The  kind  of  interposition  declared 
against  was  that  which  may  be  made  for  the  purpose 
of  controlling  their  political  affairs,  or  extending  to 
this  hemisphere  the  system  in  operation  upon  the 
continent  of  Europe,  by  which  the  great  powers  exer 
cise  a  control  over  the  affairs  of  other  European  States. 
III.  The  declarations  do  not  intimate  any  course 
of  conduct  to  be  pursued  in  case  of  such  interposi 
tions,  but  merely  say  that  they  would  be  "consid 
ered  as  dangerous  to  our  peace  and  safety,"  and  as 
"  the  manifestation  of  an  unfriendly  disposition  toward 
the  United  States,"  which  it  would  be  impossible  for 
us  to  "behold  with  indifference";  thus  leaving  the 
nation  to  act  at  all  times  as  its  opinion  of  its  policy 
or  duty  might  require.  IV.  The  declarations  are  only 
the  opinion  of  the  administration  of  1823,  and  have 
acquired  no  legal  force  or  sanction.  V.  The  United 
States  has  never  made  any  alliance  with,  or  pledge 
to,  any  other  American  State  on  the  subject  covered 
by  the  declarations.  VI.  The  declaration  respect 
ing  non-colonization  was  on  a  subject  distinct  from 
European  intervention  with  American  States,  and 
related  to  the  acquisition  of  sovereign  title  by  any 
European  power,  by  new  and  original  occupation  or 
colonization  thereafter.  Whatever  were  the  political 
motives  for  resisting  such  colonization,  the  principle 
of  public  law  upon  which  it  was  placed  was,  that  the 
continent  must  be  considered  as  already  within  the 
occupation  and  jurisdiction  of  independent  civilized 
nations. 

On  this  subject,  the  reader  is  referred  to  the  follow 
ing  authorities:  —  Mr.  Adams  to  Mr.  Rush,  July  2, 
1823;  Mr.  Monroe's  message,  December  2,  1823;  Mr. 


328  RICHARD  HENRY  DANA,  JR. 

Rush's  Memoranda  of  Residence  at  the  Court  of 
London;  Stapleton's  Life  of  Canning;  Brief wechsel 
zwischen  Varnhagen  von  Ense  und  Oelsner,  vol.  iii; 
Mr.  Clay's  resolution,  offered  January  20,  1824;  the 
ukase  of  the  Emperor  Alexander,  September  4,  1821; 
the  treaty  between  the  United  States  and  Spain,  22 
February,  1819;  the  Nootka-Sound  Convention  be 
tween  Spain  and  Great  Britain  of  28  October,  1790; 
Mr.  Monroe's  annual  message,  December  7,  1824; 
Mr.  Adams's  messages  of  December  26,  1825,  and 
March  26, 1826;  Mr.  Clay's  despatch  to  Mr.  Poinsett, 
March  25, 1825 ;  Mr.  Webster's  speech  on  the  Panama 
mission,  Webster's  Works,  iii,  178;  Mr.  Everett's 
speech  on  the  same,  Congressional  Debates,  1826; 
Mr.  Calhoun's  speech  on  the  Yucatan  question,  Cal- 
houn's  Works,  iv,  454;  Mr.  Polk's  annual  message 
of  December  2,  1845;  his  special  message  on  Yucatan, 
of  April  29,  1848;  the  debate  in  the  Senate  on  the 
Yucatan  question,  April  and  May,  1848,  Congressional 
Globe,  1848,  p.  712  et  seq.;  the  Clayton-Bulwer  treaty, 
United-States  Laws,  x,  995;  Debates  in  the  United 
States  on  the  Clayton-Bulwer  treaty,  1855-56,  Con 
gressional  Globe  and  Appendix  for  first  Session  Thirty- 
fourth  Congress;  North -American  Review,  1856, 
page  478;  Mr.  Everett's  letter  of  September  2,  1863, 
on  the  Monroe  Doctrine,  in  the  New- York  Ledger; 
Letter  of  J.  Q.  Adams  on  the  same,  to  the  Rev.  Dr. 
Channing,  of  August  11, 1837;  Mr.  Canning's  speech 
of  December  12,  1826;  Mr.  Buchanan's  article  on  the 
Monroe  Doctrine,  in  his  History  of  his  Administra 
tion,  page  276. 


THE  MONROE  DOCTRINE  329 

FRENCH  INTERVENTION  IN  MEXICO 

This  intervention  began  with  a  convention  "made  at  Lon 
don  on  the  31st  of  October,  1861,  between  Great  Britain,  France 
and  Spain,  professedly  for  the  purpose  of  obtaining  redress  and 
security  from  Mexico  to  the  citizens  of  the  contracting  powers." 
The  direct  object  was  to  force  the  payment  by  Mexico  of  bonds 
held  by,  and  the  collection  of  damages  for  injuries  inflicted  on 
citizens  of,  the  contracting  powers,  and  also  to  secure  a  more 
efficacious  protection  for  the  persons  and  property  of  their  citi 
zens  residing  in  Mexico  in  the  future.  The  contracting  powers 
"engaged  not  to  seek  for  themselves  any  acquisition  of  terri 
tory  or  special  advantage,  nor  to  exercise  in  the  internal  affairs 
of  Mexico  any  influence  of  a  nature  to  prejudice  the  right  of  the 
Mexican  nation  to  choose  and  constitute  the  form  of  its  govern 
ment,"  and  that  the  occupation  of  territory  and  "other  opera 
tions"  should  be  limited  to  such  as  should  be  judged  suitable  to 
secure  the  above  objects;  in  short,  it  was  war  on  Mexico,  not 
only  to  obtain  payment  of  debts  and  damages,  but  to  change 
the  government  to  one  more  secure,  which  change,  however, 
was  to  be  effected  by  the  Mexicans  themselves,  and  until  these 
objects  were  attained,  armed  occupation  was  to  be  acquired 
ard  maintained. 

Mr.  Seward,  Secretary  of  State,  suggested  an  arrangement  by 
which  the  United  States  would  enable  Mexico  to  pay  her  just 
debts;  but  that  alone  was  not  considered  satisfactory,  as  the 
contracting  powers  insisted  that  one  of  their  chief  objects  was 
to  secure  the  future  good  treatment  of  resident  foreigners.  Mr. 
Seward  admitted  the  right  of  the  powers  to  judge  for  themselves 
whether  they  had  sustained  grievances  that  required  them  to 
levy  war;  but  that  the  United  States  had  a  deep  interest  that 
they  should  not  interfere  with  the  right  of  the  Mexican  people 
to  choose  the  form  of  their  own  government. 

In  April,  1862,  the  Spanish  and  English  withdrew,  on  the 
ground  that  the  French  had  gone  beyond  the  terms  of  the  con 
vention  in  giving  military  aid  to  the  party  in  favor  of  establish 
ing  an  imperial  government  in  Mexico.  Under  French  protec- 


330  RICHARD  HENRY  DANA,  JR. 

tion,  an  assembly  of  notables  selected  by  the  imperial  party 
offered  the  throne  to  Archduke  Maximilian  of  Austria,  without 
even  the  pretense  of  a  general  vote  of  the  Mexican  people,  and 
this  government  was  acknowledged  and  protected  by  France. 
Both  the  United  States  and  Great  Britain  refused  to  recognize 
this  new  government;  but  acknowledged  a  state  of  war  and 
held  themselves  neutral. 

The  government  of  the  United  States,  during  the  first  three 
years  of  this  interference  on  the  part  of  France,  was  so  occupied 
with  the  Civil  War  that  only  occasional  protests  were  made; 
but  soon  after  the  Civil  War  was  over,  at  the  end  of  1865,  Mr. 
Seward  took  more  decided  steps.  He  then  made  it  clear  that  in 
the  United  States  there  was  much  discontent,  not  with  the 
French  war  in  Mexico,  but  with  the  attempt  of  France  to  es 
tablish  by  force  a  monarchical  government  in  an  American  state 
which  itself  preferred  a  republican  form  of  government;  and 
expressed  the  wish  that  France  "might  find  it  compatible  with 
its  interests  and  high  honor  to  withdraw  from  this  aggressive 
attitude  in  Mexico,"  which  meant,  in  diplomatic  language,  as 
Bancroft  says  in  his  Life  of  Seward,  that  France  must  "with 
draw  or  fight."  A  United  States  "army  of  observation"  under 
command  of  General  Sheridan  was  established  on  the  banks  of 
the  Rio  Grande  and  had  much  to  do  with  the  success  of  Seward's 
diplomacy.1  In  1866,  France  promised  to  withdraw  by  the  fol 
lowing  year,  but  later  expressed  a  wish  to  postpone  the  depar 
ture.  To  this  Secretary  Seward  replied  by  cable  that  the  United 
States  "would  not  acquiesce"  in  postponement,  and  the  French 
withdrew  from  the  city  of  Mexico  in  February,  1867.  Maxi 
milian's  forces  were  routed  and  he  was  shot  June  19  of  the  same 
year.2 

VENEZUELAN  BOUNDARY  QUESTION 

A  dispute  had  arisen  between  Great  Britain  and  Venezuela 
as  to  the  boundary  line  between  British  Guiana,  a  colony  of 
Great  Britain,  and  the  Republic  of  Venezuela.  In  that  dispute, 

1  See  Personal  Memories  of  P.  H.  Sheridan,  vol.  ii,  pp.  206-228. 

2  See  Dana's  Wheaton,  note  41,  pp.  126-132,  and  Moore's  Interna 
tional  Law  Digest,  vol.  vi,  sections  956-957. 


THE  MONROE  DOCTRINE  331 

which  had  been  going  on  for  many  years,  Venezuela  claimed  — 
and  with  a  sufficient  prima  facie  case  to  make  it  worthy  of  con 
sideration  —  that  Great  Britain  had  been  extending  its  bound 
ary  claims  westward  into  Venezuelan  territory,  and  was  un 
willing  to  arbitrate  the  whole  question,  but  only  a  portion  of  her 
most  westerly  and  recently  extended  claims. 

In  response  to  the  annual  message  of  President  Cleveland 
touching  on  this  subject,  a  resolve  was  passed  by  both  Houses 
of  Congress  and  approved  February  2,  1895,  in  which  it  was 
"earnestly  recommended"  that  Great  Britain  and  Venezeula 
refer  the  dispute  to  "friendly  arbitration."  In  accordance  with 
this  resolution,  a  correspondence  was  begun  between  Secretary 
Olney  for  the  United  States  and  Lord  Salisbury  for  Great  Britain, 
in  the  same  year.  Mr.  Olney,  in  his  letter  of  July  20, 1  claimed 
that  the  Monroe  Doctrine,  declaring  against  "future  acquisi 
tion  by  European  powers"  or  trying  to  "extend  their  political 
system  to  any  portion"  of  America,  applied  to  a  boundary  dis 
pute  in  which  it  was  claimed  with  some  show  of  justice  that 
extensions  of  territory  were  being  made,  and  that  the  United 
States  could  not  "behold"  such  a  possible  extension  with  "in 
difference,"  and  urged  arbitration,  covering  the  whole  of  the 
territory  claimed  by  either  party,  as  the  only  proper  method 
of  settling  the  dispute. 

President  Cleveland,  in  a  subsequent  message  to  Congress 
dated  December  2,  1895,2  touched  on  this  dispute  between  Great 
Britain  and  Venezuela,3  and  referred  to  the  dispatch  by  Secre 
tary  Olney  of  July  20,  "in  which"  the  message  says  "the  atti 
tude  of  the  United  States  was  fully  and  distinctly  set  forth. 
The  general  conclusions  there  reached  and  formulated  are  in 
substance  that  the  traditional  and  established  policy  of  this 
government  is,"  etc.;  "that,  as  a  consequence,  the  United  States 
is  bound  to  protest  against  the  enlargement  of  the  area  of  British 
Guiana  in  derogation  of  the  rights  and  against  the  will  of  Vene- 

1  Sen.  Doc.  No.  31,  54  Cong.,  1  Sess.,  p.  4. 
a  Ibid.,  p.  4. 

3  This  occupied  three  fourths  of  a  page  out  of  a  message  34  pages 
in  length. 


332  RICHARD  HENRY  DANA,  JR. 

zuela;  that  considering  the  disparity,"  etc.;  "the  territorial  dis 
pute  between  them  can  be  reasonably  settled  only  by  ...  arbi 
tration."  Lord  Salisbury's  reply,  though  dated  November  26, 
was  not  received  in  Washington  till  some  time  after  this  mes 
sage.  In  that  reply,1  Lord  Salisbury  agreed  to  the  Monroe  Doc 
trine  in  so  far  that  "any  fresh  acquisitions  on  the  part  of  any 
European  state  would  be  a  highly  inexpedient  change";  but 
asserted  that  Her  Majesty's  government  must  not  be  understood 
as  accepting  the  Monroe  Doctrine,  and  denied  that  it  was  in 
any  way  "clothed  with  the  sanction  ...  of  international  law," 
and  claimed  that  "the  disputed  frontier  of  Venezuela  has  nothing 
to  do  with  any  of  the  questions  dealt  with  by  President  Monroe," 
and  gives  the  United  States  no  right  to  demand  arbitration  be 
tween  Great  Britain  and  Venezuela,  and  called  such  a  demand 
by  the  United  States  a  "novel  prerogative." 

In  a  letter  to  the  British  Ambassador  at  Washington  of  the 
same  date,2  Lord  Salisbury  stated  that  the  apparent  extensions 
of  the  boundary  line  into  Venezuelan  territory  were  explained  by 
the  fact  that  Great  Britain  had,  on  previous  occasions,  placed 
the  boundary  line  short  of  its  real  claims,  in  hopes  of  securing  a 
compromise  with  Venezuela,  and  failing  in  that,  had  pushed  the 
boundary  to  the  extent  of  what  it  considered  its  full  rights.  In 
conclusion,  Lord  Salisbury  refused  to  arbitrate  the  whole  dispute, 
but  was  willing  to  arbitrate  with  reference  to  the  claims  west  of 
the  Schomburgk  line,  so-called,  drawn  by  an  engineer  of  that 
name  in  Her  Majesty's  employ  in  1840.  This  left  a  portion  only  of 
the  disputed  territory  open  to  arbitration,  and  more  particularly 
excluded  territory  near  the  mouth  of  the  Orinoco,  which  con 
trolled  the  entrance  to  the  great  river  running  through  Venezuelan 
territory. 

After  receiving  this  refusal  to  arbitrate  the  dispute  in  a  sub 
stantial  manner,  President  Cleveland,  in  a  special  message  of 
December  17,3  enclosed  copies  of  the  above  correspondence, 
answered  some  of  Lord  Salisbury's  arguments  in  relation  to  the 

1  Sen.  Doc.  No.  31,  54  Cong.,  1  Sess.?  p.  22. 

2  Ibid.,  p.  26. 

3  Ibid.,  pp.  1-4. 


THE  MONROE  DOCTRINE  333 

Monroe  Doctrine,  and  then  went  on  to  say,  it  is  "now  incumbent 
upon  the  United  States  to  take  measures  to  determine,  with 
sufficient  certainty  for  its  protection,  what  is  the  true  division 
line  between  the  republic  of  Venezuela  and  British  Guiana,"  and 
suggested  to  Congress  a  commission  with  "adequate  appropria 
tions,"  to  be  appointed  by  the  executive,  to  investigate  and  re 
port. 

"When  such  report  is  made  and  accepted  it  will  in  my  opin 
ion  be  the  duty  of  the  United  States  to  resist  by  every  means  in 
its  power,  as  a  willful  aggression  upon  its  rights  and  interests, 
the  appropriation  by  Great  Britain  of  any  lands  or  the  exercise 
of  governmental  jurisdiction  over  any  territory  which  after  in 
vestigation  we  have  determined  of  right  belongs  to  Venezuela. 

"In  making  these  recommendations  I  am  fully  alive  to  the 
responsibility  incurred,  and  keenly  realize  all  the  consequences 
that  may  follow. 

"I  am  nevertheless  firm  in  my  conviction  that  while  it  is  a  griev 
ous  thing  to  contemplate  the  two  great  English-speaking  peoples 
of  the  world  as  being  otherwise  than  friendly  competitors  in  the 
onward  march  of  civilization,  and  strenuous  and  worthy  rivals 
in  all  the  arts  of  peace,  there  is  no  calamity  which  a  great  nation 
can  invite  which  equals  that  which  follows  a  supine  submission 
to  wrong  and  injustice  and  the  consequent  loss  of  national  self- 
respect  and  honor,  beneath  which  are  shielded  and  defended  a 
people's  safety  and  greatness." 

Both  Great  Britain  and  the  United  States  were  thunderstruck 
by  this  message.  The  stock  market  in  the  United  States,  which 
had  been  in  a  weak  condition,  fell  rapidly  on  the  mere  suggestion 
of  war,  for  which  we  were  but  inadequately  prepared,  and  not 
only  much  of  the  opposition  press,  but  some  of  the  independent 
papers,  especially  in  New  York  and  Boston,  which  had  hitherto 
supported  President  Cleveland,  attacked  this  message  with 
ferocity.  Congress,  however,  was  almost  a  unit  in  support  of 
President  Cleveland's  position,  and  so  was  most  of  the  press 
of  the  country,  not  under  Wall  Street  influences. 

Among  the  attacks,  it  was  stated  that,  in  the  first  message, 
the  phrase  used  by  Cleveland,  "the  enlargement  of  area  of 


334  RICHARD  HENRY  DANA,  JR. 

British  Guiana  in  derogation  of  the  rights  and  against  the  will 
of  Venezuela,"  was  a  finding  on  the  part  of  President  Cleveland 
that  Great  Britain  was  in  the  wrong.  This  statement  was  re 
peated  and  this  quotation  to  substantiate  it  was  made  again 
and  again  by  such  papers  as  the  New  York  "Nation."  This 
quotation,  omitting  the  words  "that  as  a  consequence"  and 
taken  alone  by  itself  without  reference  to  the  rest  of  the  message, 
might  surely  seem  to  have  such  a  meaning;  but  the  words  in 
question  are  but  a  survey  of  the  "general  conclusions"  of  Mr. 
Olney's  letter  of  July  20,  and  in  that  letter,  Mr.  Olney,  Secre 
tary  of  State,  says :  — 

"It  is  not  admitted,  however,  and  therefore  cannot  be 
assumed  that  Great  Britain  is  in  fact  usurping  dominion  over 
Venezuelan  territory.  While  Venezuela  charges  such  usurpa 
tion,  Great  Britain  denies  it,  and  the  United  States,  until 
the  merits  are  authoritatively  ascertained,  can  take  sides  with 
neither." 

Lord  Salisbury,  in  his  reply  of  November  26,  clearly  under 
stands  the  attitude  of  the  United  States  as  not  committed  to 
any  finding,  and  says  "the  government  [United  States]  appar 
ently  have  not  formed  and  certainly  did  not  express  any  opin 
ion  upon  the  actual  merits  of  the  dispute.  The  government  of  the 
United  States  do  not  say  that  Great  Britain  or  that  Venezuela 
is  in  the  right  in  the  matters  that  are  in  issue";  and  still  more 
is  it  apparent  that  President  Cleveland  was  making  no  finding, 
when  we  come  to  the  special  message  w^hich  caused  the  excite 
ment,  and  which  puts  it  conditionally,  "if  any  European  power 
by  an  extension  of  its  boundaries,"  and  again,  "without  any 
conviction  as  to  the  final  merits  of  the  dispute,  but  anxious  to 
learn  if  the  government  of  Great  Britain  sought,  under  claim  to 
boundary,  to  extend  her  position,  .  .  .  this  government  proposes 
.  .  .  arbitration";  and  arbitration  being  declined,  the  message 
proposed  a  commission  to  determine  "the  true  divisional  lines." 
Taking  it  altogether,  and  apart  from  the  excitement  of  the  mo 
ment,  it  is  quite  clear  that  the  sentence  is  only  a  statement  of  a 
conclusion  that  our  government  was  bound  to  protest  against 


THE  MONROE  DOCTRINE  335 

such  an  enlargement  of  area,  incase  any  such  enlargement  should 
in  fact  exist.1 

Whatever  may  be  said  as  to  the  harshness  of  the  wording  of 
the  special  message  of  December  17,  for  which  there  is,  however, 
recent  diplomatic  authority,  it  had  the  effect  of  arousing  the 
British  public  conscience.  The  correspondence,  covering  many 
years  and  different  administrations,  on  this  subject,  had  all  been 
pigeon-holed  in  the  Foreign  Office  of  Great  Britain,  excepting 
that  Gladstone,  in  1885,  had  proposed  a  more  liberal  arbitra 
tion  2  than  his  successor,  Lord  Salisbury,  was  willing  to  carry 
out.  Public  opinion  in  England  being  enlightened  and  stirred 
by  this  message,  forced  Lord  Salisbury  to  submit  the  whole 
question  to  arbitration  without  reservation  except  that  actual 
settlements  should  be  reserved  and  that  "adverse  holdings  for 
fifty  years"  should  make  a  good  title.3  This  "actual  settlement" 
reservation  was  suggested  by  Secretary  Olney  and  embodied  in 
the  arbitral  agreement  in  accordance  with  which  the  arbitra 
tion  was  to  be  conducted  following  the  precedent  made  in  the 
Geneva  Arbitration  on  the  Alabama  claims.  This  removed  the 
last  objection  by  Great  Britain  to  complete  arbitration.4  The 
treaty  was  signed  February  2,  1897,  before  the  United  States 
commission  of  inquiry  had  made  its  report.  Later,  President 
Cleveland,  in  his  "Political  Problems,"  said:  — 

"Some  may  be  surprised  that  this  controversy  was  so  long 
chronic  and  yet  in  the  end  yielded  so  easily  to  pronounced  treat 
ment." 

The  International  Commission  of  Arbitration  rendered  a 
unanimous  award  October  3,  1899,  and  in  that,  while  giving 
Great  Britain  a  large  share  of  the  interior  territory  in  dispute,5 

1  See  also  Presidential  Problems,  by  Grover  Cleveland,  p.  258. 

2  Letter  of  Lord  Granville,  May  15,  1885. 

3  Art.  IV,  rule  (a)  of  treaty,  Great  Britain  Foreign  Office,  Venezuela 
No.  1,1899,  p.  3. 

4  Letter  of  Mr.  Olney  to  Sir  Julian  Pauncefote,  July  13, 1896,  pp.  253- 
254,  U.  S.  For.  Rels.,  1896. 

5  Message  of  President  McKinley  to  Congress,  Dec.  5,  1899,  House 
Doc.,  vol.  i,  56th  Cong.,  1st  Sess.,  1899,  p.  xxxii. 


336 


RICHARD  HENRY  DANA,  JR. 


gave  to  Venezuela  no  little  land  on  and  near  the  coast,  which 
was  of  great  value  as  it  commanded  the  mouth  of  the  Orinoco, 
and  which  was  a  part  of  the  territory  Lord  Salisbury,  in  his 
correspondence  of  1895,  was  unwilling  should  be  submitted  to 


••— — *-Extreme~British  Claim  (1895^ 

oooooooooo  Schomburgh  Line,  East  of  which  Great  Britain 

-would  not  submit  to  arbitration  in  1895 

"  Boundary  established  by  Arbitration  Commission  in  1899 

•-I— I— I—I—  Extreme  Venezuelan  Claim 


arbitration.    Great  Britain  was  allowed  about  one  quarter  of 
the  interior  land  which  she  was  willing  to  arbitrate  in  1895. 

I  learn,  on  sufficient  authority,  that  President  Cleveland 
feared,  if  this  matter  were  allowed  to  drift  on  till  open  rupture 
came  between  England  and  Venezuela,  we  should  be  involved 
in  the  war.  Diplomatic  relations  between  England  and  Vene 
zuela  had  already  been  broken  off,  and  armed  conflicts,  followed 
by  threats  of  war  measures,  had  already  occurred  in  the  dis 
puted  territory.  Should  war  have  begun,  in  which  it  must  appear 
that  there  was  good  reason  to  believe  England's  claim  to  ter 
ritory  had  been  increased  so  that  her  action  would  seem  to  be 
the  forcible  extension  of  territory,  the  American  people  would 
become  aroused  and  force  our  government  to  side  with  Vene 
zuela.  Then  Great  Britain  could  not  retreat  with  honor.  In- 


THE  MONROE  DOCTRINE  337 

evitably  it  would  then  be  too  late  to  get  arbitration  by  mere 
suggestion  of  force,  while,  on  the  other  hand,  Cleveland,  being 
a  man  of  peace  above  all  things,  foresaw  the  great  advantage  of 
making  this  suggestion  in  the  diplomatic  stages  of  the  contro 
versy.  Some  passages  in  President  Cleveland's  Venezuelan 
Boundary  Controversy  l  sustain  this  view. 

As  to  acquiescing  in  the  policy  maintained  by  Lord  Salisbury, 
that  England,  in  a  case  of  arbitrating  a  boundary  dispute,  could 
exempt  from  arbitration,  at  her  discretion,  any  part  of  the  ter 
ritory  in  dispute,  that  would  have  been  a  fatal  precedent  for  us, 
for  example,  in  the  subsequent  dispute  with  Great  Britain  as  to 
the  boundary  between  the  United  States  and  her  Canadian 
provinces.  As  a  result  of  this  latter  arbitration,  almost  the  whole 
territory  was  given  to  the  United  States;  but  had  the  doctrine  of 
withholding  part  of  the  disputed  territory  been  established,  Great 
Britain  could  easily  have  refused  to  arbitrate  upon  more  than  a 
portion  of  this  territory,  which  eventually  came  to  us. 

GERMAN  CLAIMS  FOR  REPARATION  AND  APOLOGY  AGAINST 
THE  HAYTIAN  GOVERNMENT 

In  1897,  the  government  of  Hayti,  relying  upon  its  own  view 
of  the  Monroe  Doctrine,  applied  to  the  United  States  for  its 
influence  to  prevent  coercion  by  Germany,  which  was  seeking 
reparation  and  apology  for  injuries  to  a  German  subject  residing 
in  Hayti.  Mr.  William  M.  Evarts,  Secretary  of  State,  answered, 
"The  Monroe  Doctrine  to  which  you  refer  is  wholly  inapplicable 
to  the  case,"  and  instructed  Mr.  Powell,  our  Minister  in  Hayti, 
that  it  is  not  "the  duty  of  the  United  States  to  protect  its  Amer 
ican  neighbors  from  the  responsibilities  which  attend  the  exer 
cise  of  independent  sovereignty." 

THE  UNITED  STATES  AND  NICARAGUA 

Having  established  the  principle  that  other  nations  may  de 
mand  reparation  and  apology,  by  force  if  necessary,  without 
contravening  the  Monroe  Doctrine,  our  government  feels  itself 

1  Presidential  Problems,  by  Grover  Cleveland. 


338  RICHARD  HENRY  DANA,  JR. 

free  to  make  the  same  demands.  President  Zelaya  of  Nicaragua 
was  reported  to  have  tortured  and  shot  two  Americans,  Groce 
and  Cannon,  in  the  autumn  of  1909.  Secretary  of  State  Knox, 
in  a  strong  message  to  Zelaya,  demanded  an  immediate  and  full 
explanation,  United  States  vessels  with  marines  were  sent  to 
the  coast,  ready  to  take  action  in  case  the  truth  of  these  reports 
could  be  confirmed,  and  diplomatic  relations  with  Nicaragua 
were  broken  off. 

COLLECTION  OF  CLAIMS  BY  FOREIGN  GOVERNMENTS 
AGAINST  VENEZUELA 

In  1902-3,  Great  Britain,  Germany  and  Italy,  by  a  combined 
blockade  of  the  ports  of  Venezuela,  compelled  the  payment  of 
claims,  partly  money  engagements,  and  partly  damages  for  in 
jury  to  the  subjects  of  those  nations  residing  in  Venezuela.  Ger 
many,  in  its  note  of  December  11,  1901,  stated  to  the  United 
States  government  its  plan  to  use  coercion  in  case  Venezuela 
refused  settlement,  saying,  "We  declare  especially  that  under 
no  circumstances  do  we  consider  in  our  proceedings  the  acqui 
sition  or  the  permanent  occupation  of  Venezuelan  territory," 
though  Germany  might  have  to  resort  to  "the  temporary  occu 
pation  on  our  [its]  part  of  different  Venezuelan  harbor-places 
and  the  levying  of  duties  in  those  places." 

President  Roosevelt,  in  his  message  of  December  3,  1901,  had 
re-stated  the  principles  of  the  Monroe  Doctrine,  and  had  added, 
"We  do  not  guarantee  any  state  against  punishment  if  it  mis 
conducts  itself,  provided  that  punishment  does  not  take  the  form 
of  the  acquisition  of  territory  by  any  non- American  power." 

Later,  being  forced  by  the  blockading  of  her  ports,  Venezuela, 
through  the  United  States  government,  conveyed  a  proposal 
of  arbitration,  and  this  was  accepted  by  the  powers,  reserving 
some  special  war-claims.  The  Hague  Tribunal  was  to  be  the 
arbitrator.  It  considered,  however,  only  the  claim  of  the  prefer 
ential  payment  to  the  blockading  powers,  which  claim,  by  its 
decree  of  February  22,  1904,  was  sustained.  The  amount  of  the 
claims,  with  the  special  war  exceptions,  was  finally  decided  by 
mixed  commissions  at  Caracas. 


THE  MONROE  DOCTRINE  339 

SAN  DOMINGO  PROTOCOL 

The  decision  of  the  Hague  Tribunal,  in  the  case  of  the  col 
lection  of  claims  against  Venezuela,  in  favor  of  preferential 
payment  of  the  claims  of  the  blockading  powers,  before  the  pay 
ment  of  the  claims  of  other  nations,  had  a  more  important 
bearing  on  the  Monroe  Doctrine  than  would  at  first  appear. 

It  had  been  the  traditional  policy  of  the  United  States  not 
of  itself  to  compel  or  to  join  with  other  countries  in  compelling 
by  military  or  naval  force,  its  financial  claims  against  other 
American  countries.  Continuing  to  follow  this  policy  would, 
under  the  Hague  decision,  postpone  the  claims  of  the  United 
States  and  its  citizens  until  the  claims  of  all  other  nations  willing 
to  use  force  had  been  satisfied.  In  case  the  delinquent  country 
were  rich  and  prosperous,  this  postponement  might  not  be  so 
serious  a  matter;  but  if  the  delinquent  country  were  practically 
bankrupt,  and  if  it  would  take  a  generation  or  more  to  pay  off 
the  force-preferred  claims,  then  the  United  States  would  prac 
tically  be  deferring  the  rights  of  its  citizens  to  the  next  world, 
as  far  as  lives  in  being  are  concerned. 

In  this  same  connection,  though  independent  of  the  decision 
of  the  Hague  Tribunal,  arises  the  question  as  to  the  so-called 
"temporary  occupation"  of  the  territory,  mainly  customs  ports, 
of  American  countries  by  European  naval  forces  for  the  purpose 
of  collecting  debts.  Such  occupation,  if  the  delinquent  country 
were  rich  and  the  debts  moderate,  would  be  "temporary"  in  the 
sense  of  being  short;  but  if  the  delinquent  country  were  bank 
rupt  and  the  obligation  large,  such  "temporary  occupation" 
might  become  practically  permanent. 

Take,  for  example,  the  "temporary  occupation"  of  Egypt  by 
Great  Britain,  which  has  lasted  over  twenty  years,  with  no  sign 
of  its  coming  to  an  end;  or  the  "temporary  occupation"  of 
Mexico  by  the  French  from  1862  to  1867,  which  would  not  have 
ceased  but  for  the  demand  of  the  United  States. 

A  case  of  indefinite  occupation  was  proposed  by  Spain  in  1866 
in  connection  with  the  Chincha  Islands.  Spain  proposed  to  oc 
cupy  these  islands  and  sell  guano,  to  recoup  herself  for  her  ex. 


340  RICHARD  HENRY  DANA,  JR. 

penses  in  the  war  with  Peru.  This  being  an  indefinitely  long 
occupation,  Secretary  Seward  notified  Spain  that  such  a  prece 
dent  would  "severely  tend  to  disturb  the  harmonious  relations'* 
between  the  United  States  and  Spain,  which  attitude  caused 
Spain  to  give  up  the  proposed  "temporary  occupation." 

The  probability  of  just  such  a  prolonged  occupation,  and  the 
indefinite  postponement  of  the  claims  of  United  States  citizens, 
arose  in  the  case  of  San  Domingo  in  1905.  A  protocol  had  been 
arranged  by  President  Roosevelt  with  the  government  of  San 
Domingo,  by  which  the  United  States  was  to  take  charge  of  the 
customs  revenue  of  San  Domingo,  and  pay  a  percentage  for  the 
support  of  the  government  of  that  country,  the  balance  to  be  paid 
to  the  creditors  of  other  countries,  including  those  of  the  United 
States.  This  protocol  with  an  explanatory  message x  in  its  support 
was  sent  to  the  United  States  Senate  February  7th,  1905.  While 
this  was  of  course  an  extension  of  the  Monroe  Doctrine  to  a  point 
that  might  fairly  be  said  to  make  it  a  new  doctrine,  yet  there  had 
been  at  least  partial  precedents  for  this  course  of  action.  When  the 
English,  Spanish,  and  French  governments  were  planning  to  take 
forcible  measures,  including  temporary  occupation  of  territory,  to 
collect  claims,  etc.,  against  Mexico  in  1861 ,  Mr.  Seward  proposed,  in 
his  note  to  the  powers,  dated  December  4,  that  the  United  States 
might  make  a  treaty  with  Mexico  by  which  we  should  guaran 
tee  satisfaction  of  all  just  money  claims  and  secure  repayment 
to  ourselves.  A  loan  of  $11,000,000  was  suggested.2  As  secu 
rity,  the  American  government  was  to  have  a  mortgage  on  all 
the  public  lands,  minerals,  etc.,  of  Lower  California  and  Chi 
huahua  and  other  provinces  bordering  on  the  United  States. 
A  commission,  composed  of  three  Mexicans  and  two  Americans, 
was  to  assume  the  administration  of  the  lands,  etc.3  It  proved, 
however,  that  money  payment  alone  was  not  satisfactory  to  the 

1  Presidential  Messages,  1905;  House  Documents  59th  Cong.,   1st 
Sess.,  vol.  i,  pp.  334-342.    Protocol;  Ibid.,  pp.  342-343. 

2  Seward  to  Adams,  June  7,  1862. 

3  Lord  Lyons  and  Earl  Russell,  Dec.  31,  1861,  p.  418;  Exec.  Doc. 
1861-2,  vol.  viii;  Jas.  Corwin  to  Seward,  Mar.  24,  1862. 


THE  MONROE  DOCTRINE  341 

powers,  and  when  the  treaty  came  to  the  United  States  Senate, 
it  was  found  to  be  of  no  use,  and  w^as  rejected  on  resolution  of 
February  25,  1862. 

Again,  in  1880,  Secretary  Evarts,  and  in  the  next  year  Sec 
retary  Elaine,  suggested  that  the  United  States  would  guaran 
tee  to  the  powers  seeking  money  compensation  from  Venezuela, 
monthly  payments  to  satisfy  the  claims  of  the  creditor  nations. 
In  case  of  default  in  the  installments,  "the  agent  placed  there 
by  the  United  States  and  acting  as  trustee  for  the  creditor 
nations,  shall  be  authorized  to  take  charge  of  the  custom-houses 
of  Laguayra  and  Puerto  Cabello,  and  receive  from  the  monthly 
receipts  a  sufficient  sum  to  pay  the  stipulated  amounts." 

The  protocol  signed  by  President  Roosevelt,  which  amounted 
to  a  voluntary  assignment  by  San  Domingo  to  the  United  States 
for  the  benefit  of  creditors,  was  not  at  first  accepted  by  the  Senate. 
President  Roosevelt  as  a  modus  vivendi  appointed  agents  under  an 
agreement  with  the  government  of  San  Domingo,  and  to  the  satis 
faction  of  the  creditors,  by  which  these  agents  should  collect 
the  revenues  under  the  general  scheme  as  proposed  in  the  pro 
tocol.  After  two  years'  delay,  the  United  States  Senate  ratified 
the  protocol  and  the  treaty  was  duly  signed  February  8,  1907. 1 

FORCIBLE  COLLECTION  OF  DEBTS  REGULATED  AT  THE 
HAGUE  PEACE  CONFERENCE 

A  convention  respecting  the  limitation  of  the  employment 
of  force  for  the  recovery  of  contract  debts  was  adopted  at  the 
Hague  Peace  Conference,  October  18,  1907.  This  provided  in 
general  that  "recourse  to  armed  force  for  the  recovery  of  con 
tract  debts  claimed  from  the  government  of  one  country  by  the 
government  of  another  country  as  being  due  to  its  naturals" 
should  not  be  had  unless  "the  debtor  state  refuses  or  neglects 
to  reply  to  an  offer  of  arbitration,  or  after  accepting  the  offer 
prevents  any  compromise  from  being  agreed  on,  or  after  arbi 
tration  fails  to  submit  to  the  award."  This,  it  is  believed,  is  a 

1  Treaty  accepted  and  secrecy  removed  Feb.  25, 1907.  Senate  Journal, 
59th  Cong.,  2d  Sess.,  p.  353. 


342  RICHARD  HENRY  DANA,  JR. 

great  step  in  advance  towards  a  verting  armed  intervention.1  Dr. 
Don  Louis  Maria  Drago,  Argentine  minister  for  foreign  affairs, 
brought  this  plan  to  the  attention  of  the  United  States  at  the 
time  of  Venezuela's  difficulties  in  1902.  Alexander  Hamilton 
had  early  given  definite  form  to  the  same  principle.  This  plan, 
called  "  Drago  doctrine,"  was  brought  to  the  attention  of  the 
Hague  Peace  Conference  of  1907,  by  a  resolution  adopted  at  Rio 
de  Janeiro,  the  year  before.2 

The  United  States  Senate,  on  April  17,  1908,  ratified  this 
convention,  with  the  understanding  that  "recourse  to  the  per 
manent  court  for  this  purpose  can  be  had  only  by  agreement 
thereto  through  general  or  special  treaties  of  arbitration  here 
tofore  or  hereafter  concluded  by  the  parties  in  dispute." 

The  Hague  Convention  of  1907  established  a  permanent  court 
of  arbitration  for  the  settlement  of  international  disputes,  in 
which  "neither  honor  nor  vital  interests  are  involved."  This 
was  ratified  by  the  United  States  Senate  April  2,  1908,  subject 
to  reserves  of  declaration.3 

GENERAL  CONCLUSIONS 

From  the  above  precedents,  since  Mr.  Dana's  note  was  written, 
the  Monroe  Doctrine  seems  to  include  the  following  principles : 

No  foreign  country  may  establish  in  an  American  country, 
and  maintain  by  force,  a  monarchial  form  of  government  con 
trary  to  the  wishes  of  the  inhabitants  of  that  American  country. 
This  is  clearly  within  the  original  doctrine.  A  forcible  increase 
of  territory  in  America  by  a  European  country  may  be  resisted, 
and  if  there  is  reason  to  apprehend  that  such  an  increase  is  being 
made  in  a  boundary  dispute,  the  United  States  may  demand 
that  the  whole  dispute  be  arbitrated.  Though  this  may  follow 

1  See  Texts  of  the  Peace  Conferences  of  the  Hague,  1899-1907,  by 
James  Brown  Scott,  pp.  193-198. 

2  See  the  resolution  adopted  at   the   International  Conference  of 
American  States,  held  at  Rio  de  Janeiro,  July  21  to  Aug.  26, 1906,  Sen. 
Doc.  No.  365,  59th  Congress,  2d  Sess.,  p.  14.   (Senate,  5073,  1906-7.) 

3  See  Texts  of  the  Peace  Conferences  of  the  Hague,  1899-1907,  by 
James  Brown  Scott,  p.  193. 


THE  MONROE   DOCTRINE  343 

as  a  logical  consequence  from  the  original  message  of  President 
Monroe,  it  is  not  explicitly  within  it.  The  United  Slates  is  not 
to  protect  American  countries  from  their  own  misconduct  against 
other  nations.  Foreign  nations  may  by  force  temporarily  occupy 
American  countries  for  the  purpose  of  collecting  claims.  This 
has  been  modified  by  the  Hague  treaties  requiring  arbitration, 
or  at  least  offers  of  arbitration,  as  to  the  amount  of  the  claims, 
before  such  forcible  occupation.  European  occupation  of  terri 
tory  in  America  for  the  purpose  of  collecting  claims,  which, 
though  declared  to  be  "temporary,"  is  likely  to  be  for  a  long  and 
indefinite  period,  the  United  States  may  resist. 

How  foreign  countries  may  collect  large  claims  against  an  im 
poverished  country,  which  would  require  too  long  and  inde 
finite  occupation,  has  been  provided  for  by  President  Roosevelt's 
San  Domingo  plan,  which  in  that  island  has  secured  peace, 
stopped  revolutions,  and  contented  all  its  creditors.  This,  though 
a  natural  corollary  of  the  already  somewhat  extended  Monroe 
Doctrine,  was  clearly  not  in  the  original.  Since  Mr.  Dana's  note 
was  written,  the  Monroe  Doctrine,  with  President  Cleveland's 
interpretation  of  it,  has  received  the  "sanction"  of  Congress  in 
the  Venezuelan  boundary  dispute  in  1895,  and,  together  with 
President  Roosevelt's  corollary,  it  has  received  the  "sanction" 
of  the  United  States  Senate  in  the  San  Domingo  treaty  of  1907. 

AUTHORITIES 

See  Moore's  Int.  Law  Dig.  (1906),  vi,  368-604;  Oppenheim's  Int. 
Law,  London  (1905),  i,  66,  188-191;  Elements  Int.  Law,  G.  B.  Davis 
(1908),  110-115;  Woolsey's  Int.  Law  (1878),  §  180;  Wharton's  Int.  Law 
Dig.,  §§  57-65,  150  f.,  287;  Tucker's  Monroe  Doctrine  (1903);  Halleck's 
Int.  Law  (1908),  i,  92,  95;  T.  J.  Lawrence's  Int.  Law  (1895),  131,  248- 
251;  Reddaway's  Monroe  Doctrine,  England  (1898);  T.  B.  Edington's 
Monroe  Doctrine  (1904) ;  Phillimore's  Int.  Law;  A.  A.  Stockton's  Monroe 
Doctrine  and  Other  Addresses  (1898);  What  is  the  Monroe  Doctrine? 
Filley  (1905);  Prof.  Hugo  Miinsterberg's  The  Americans,  221-225;  "San 
Domingo  Question,"  F.  G.  Newlands,  North  American  Review,  June, 
1905;  G.  S.  Boutwell's  The  Venezuelan  Question  and  the  Monroe  Doc 
trine  (1896) ;  A.  C.  Coolidge  (in  his  United  States  as  a  World  Power,  1908) ; 


344  RICHARD   HENRY   DANA    JR. 

Monroe  Doctrine,  Am.  Hist.  Leaflets,  N.  Y.,  No.  4, 1892;  "  Genesis  of  the 
Monroe  Do  .trine,"  W.  C.  Ford,  "J.  Q.  Adams  and  his  Connection  with 
the  Monroe  Doctrine,"  Proceedings  Mass.  Hist.  Soc.,  Jan.  1902;  Hen 
derson  (in  his  Diplomatic  Questions,  1901),  Monroe  Doctrine;  J.  A.  Kas- 
son's  Monroe  Doctrine,  etc.  (1904);  J.  F.  McLaughlin,  The  Monroe 
Doctrine  (1896);  J.  B.  McMaster  (1896)  (in  his  With  the  Fathers};  A.  T. 
Mahan,  Naval  Administration  and  Warfare  (1908) ;  Theodore  Roosevelt, 
American  Ideals  (1897);  Grover  Cleveland,  Presidential  Problems, 
Venezuelan  Boundary  Question;  Wilson  and  Tucker,  International  Law 
(1910),  83,  101. 


XV 

ARGUMENT  BEFORE  THE  HALIFAX  FISH 
ERY   COMMISSION 

[THE  argument  of  Mr.  Dana  before  the  Fishery  Commission 
at  Halifax,  Nova  Scotia,  1877,  should  not  be  published  without 
disclosing  the  "secret  history"  of  the  Commission  and  of  its 
"astounding"  award.  In  the  biography  of  Mr.  Dana,  from 
which  I  have  just  quoted,  Mr.  Adams  says:  "The  time  for  that 
has  not  yet  come"1  [1890];  but  now,  a  whole  generation  after 
the  award,  the  time  may  well  be  said  to  have  arrived  if  it  is  ever 
to  come,  and  that  it  should  ever  come  is  plain,  because  to  tell  the 
secret  history  is  not  merely  to  regret  the  unalterable  past.  The 
fisheries  dispute  still  remains  an  unsettled  cause  of  irritation 
between  Great  Britain  and  the  United  States,  and  the  astound 
ing  award  must  be  revised  before  a  basis  of  permanent  agree 
ment  can  be  reached. 

By  the  Treaty  of  1818,  Great  Britain  had  a  right  to  exclude 
United  States  vessels  from  fishing  within  three  miles  of  her  coasts 
in  a  great  part  of  her  North  American  domain,  and  the  United 
States  always  had  a  right,  of  course,  to  place  duties,  and  pro 
hibitive  duties  if  she  wished,  on  the  importation  of  any  fish  or 
fish-products. 

In  1871,  the  United  States  and  Great  Britain  made  the  Treaty 
of  Washington.  This  was  mainly  concerned  with  the  celebrated 
Alabama  Claims,  but  also  included  the  fisheries;  and  by  the  im 
portant  clauses  relating  to  the  latter,  the  United  States  vessels 
were  to  have  a  right  to  fish  within  the  three-mile  limit  from  which 
they  were  excluded  by  the  Treaty  of  1818,  and  Canadians  were 

1  This  note  has  been  submitted  to  and  approved  by  the  gentlemen 
who  were  secretaries  of  the  two  leading  counsel  for  the  United  States 
at  the  time  of  the  Halifax  Arbitration. 


346  RICHARD  HENRY  DANA,  JR. 

to  be  allowed  to  bring  their  fish  and  fish-products  into  the  United 
States  free  of  duty.  This  arrangement  was  to  last  for  twelve 
years,  and  as  much  longer  as  both  parties  to  the  treaty  were 
satisfied. 

In  drawing  this  Treaty  of  Washington  in  1871,  it  was  found 
impossible  to  agree  upon  the  relative  value  of  these  two  conces 
sions;  and  it  was  therefore  provided  that  a  special  commission 
should  be  appointed,  later  called  the  Halifax  Commission,  to 
appraise  them.  It  was  hoped,  to  use  the  words  of  Mr.  Thompson, 
the  chief  counsel  for  Great  Britain,  in  his  opening  argument, 
that  the  award  might  be  "the  basis  upon  which  future  and  more 
lasting  negotiations  may  be  entered  into,  and  so  a  source  of  con 
tinued  national  and  local  irritation  be  entirely  removed." 

The  award  was  for  $5,500,000,  or  at  the  rate  of  nearly  half  a 
million  a  year.  When  the  case  was  argued  before  the  Halifax 
Commission,  five  fishing  seasons  under  the  treaty  had  already 
elapsed.  The  whole  profit,  on  a  most  liberal  scale,  on  all  the 
kinds  of  fish  caught  by  vessels  from  the  United  States  in  or  near 
the  three-mile  limit  in  question,  including  all  that  were  caught 
within  the  Gulf  of  St.  Lawrence  during  each  of  these  five  years, 
was,  on  the  average,  not  equal  to  one  twentieth  of  the  yearly 
rate  of  the  award,  without  offsetting  anything  at  all  for  the  right, 
which  the  Canadians  struggled  so  earnestly  to  secure  as  some 
thing  of  great  value,  of  selling  their  fish  free  of  import  duties  in 
the  United  States.  This  Mr.  William  M.  Evarts,  Secretary  of 
State,  made  plain  in  his  illuminating  note  on  the  award  in  his 
official  report  to  President  Hayes.1 

The  Commission  or  Tribunal  before  which  the  case  was  ar 
gued  consisted  of  one  member  representing  the  United  States, 
one  representing  Great  Britain,  each  paid  by  his  own  govern 
ment,  and  a  third,  the  referee  or  arbitrator,  who  was  also  the 
President,  and  was  paid  one  half  by  each  government.  The 
decision  was  signed  by  the  referee  and  the  commissioner  from 
Great  Britain,  and  was  dissented  from  completely  by  the  United 
States  commissioner.  Unfortunately,  no  grounds  or  reasons 

1  Documents  and  Proceedings  of  the  Halifax  Commission,  1877;  Ex. 
Doc.  45th  Cong.,  2d  Sess.,  No.  89,  vol.  i,  pages  vii-xiv. 


HALIFAX  FISHERY  COMMISSION  347 

were  given  by  the  Commission  to  explain  the  "astounding" 
award. 

We  come  now  to  the  secret  history.  Mr.  Dana,  in  a  letter  to 
Mr.  Evarts,  dated  Halifax,  Nova  Scotia,  November  25,  1877, 
written  a  few  days  after  the  award  was  made,  says:  "The  bad 
result  I  attribute  entirely  to  the  composition  of  the  tribunal. 
We  have  struggled  against  this  and  aimed  at  counteracting  the 
influences  which  we  saw  from  the  first  were  likely  to  be  most 
unfortunate." 

As  to  the  arbitrator,  M.  Maurice  Delfosse,  Mr.  Dana  de 
scribes  him  in  this  same  letter  as  "a  gentleman  of  fine  feeling, 
entirely  inexperienced  in  anything  like  a  judicial  inquiry  into 
facts  or  the  weighing  of  testimony,  and  by  temperament  and 
constitution  subject  to  the  influence  of  a  more  robust  temper 
and  powerful  will,  aided  by  great  tact  and  sagacity." 

In  addition  to  that,  M.  Delfosse  had  the  European  notions 
of  judicial  proceedings. 

Unfortunately,  the  Treaty  of  Washington  put  the  United 
States  in  the  attitude  of  debtor.1  As  Mr.  Dana  said  in  the  letter 
of  November  30, 1877,  to  Mr.  Evarts :  "The  wording  of  the  treaty 
was  against  us.  ...  If  the  article  had  put  the  alternative  to 
the  tribunal,  which  was  the  debtor,  if  either,  so  that  our  case 
would  have  presented  a  demand  on  our  part,  we  should  have  had 
a  far  stronger  position." 

The  United  States  then  being  a  confessed  debtor,  the  very 
arguments  of  counsel  and  evidence  of  witnesses  that  tended  to 
show  we  owed  nothing  at  all,  or  less  than  nothing,  seemed  to  M. 
Delfosse  to  be  in  the  nature  of  very  "ingenious"  attempts  at 
evading  officially  declared  responsibility,  and  doubtless  had  the 
effect  on  his  mind  of  discrediting  our  whole  case.  He  seemed  to 
have  had  that  European  reverence  for  official  statements  later 
exhibited  in  the  first  Dreyfus  trial  in  France.  He  frequently 

1  The  wording  of  the  treaty  was  that  the  Halifax  Commission  was 
to  be  appointed  "to  determine  .  .  .  the  amount  of  any  compensation 
which  in  their  opinion  ought  to  be  paid  by  the  government  of  the  United 
States  to  the  government  of  Her  Britannic  Majesty  in  return  for  the 
privileges  accorded."  (Art.  xxii.) 


348  RICHARD  HENRY  DANA,  JR. 

showed,  in  his  conversation,  that  he  thought  cross-examination, 
by  which  we  exposed  the  weaknesses  of  the  British  testimony, 
was  a  mere  lawyers'  trick  to  confuse  witnesses. 

As  to  the  United  States  member  of  the  tribunal,  it  should  be 
understood  in  the  first  place  that  it  was  of  the  utmost  import 
ance  that  he  should  know  the  case  thoroughly,  be  able  to  pre 
sent  the  statistics  and  arguments  tellingly,  and  have  a  strong 
personal  attraction;  because,  in  the  conferences,  he  would  have 
the  chance  to  get  at  exactly  what  misapprehensions  might  be  in 
the  mind  of  the  arbitrator,  and  correct  them  in  conversation, 
while  the  counsel,  though  they  argued  never  so  ably,  had  to  ar 
gue  at  arm's  length,  and  could  only  guess  as  to  what  might  be 
going  on  in  the  arbitrator's  thoughts.  Ex-Governor  Clifford  of 
Massachusetts  had  been  appointed  our  commissioner,  but  unfor 
tunately  he  died  shortly  before  the  case  was  opened,  and  another 
man  was  put  in  his  place.  Of  this  American  commissioner,  whom 
I  shall  call  Mr.  X,  Mr.  Dana  in  a  letter  to  Mr.  Evarts  says :  — 

"I  must  speak  freely  in  strict  confidence.  He  has  been  worse 
than  useless.  I  have  some  notion  that  his  powers  (so  to  speak) 
are  diminished  by  years  of  sloth  and  heavy  feeding.  Whether 
anything  serious  has  happened  to  him,  I  do  not  know.  I  have 
never  been  able  to  get  from  him  anything  that  could  be  called 
conversation;  and  when  we  have  spoken  about  the  case,  I  was 
never  satisfied  whether  he  understood  it  or  not.  His  first  public 
appearance  was  at  a  dinner  given  to  us  by  the  Bar,  at  which  he 
made  two  speeches,  the  last  volunteered.  The  effect  was  about 
an  equal  proportion  of  wonder  and  amusement.  They  were  po 
lite  about  it,  but  evidently  thought  he  was  a  strange  fish.  The 
only  explanation  not  impeaching  his  intellect  was  an  excess  of 
champagne.  At  a  dinner  given  by  M.  Doutre,  he  volunteered 
a  speech,  where  none  was  expected,  which  was  worse  than  that 
at  the  Bar  dinner.  It  caused  us  great  mortification.  Just  before 
the  decision,  at  a  dinner  by  Sir  A.  Gait,  he  volunteered  another 
speech,  which  was  so  distressing  to  us  that  the  dinner  broke 
up  somewhat  prematurely  to  save  us  the  risk  of  another.  You 
know  M.  Delfosse  well  enough  to  understand  that  he  not  only 
would  have  no  confidences  with  such  a  man,  but  would  prob- 


HALIFAX  FISHERY  COMMISSION  349 

ably  look  upon  him  with  disgust,  while  Sir  A.  Gait  would  adroitly 
obtain  a  great  if  not  mastering  influence  over  him.  During  the 
seventy-six  days  of  our  session,  I  do  not  remember  that  the  pre 
sident  ever  turned  to  the  right,  where  sat  the  United  States  mem 
ber,  for  conference,  but  invariably  to  the  left,  Sir  A.  G.,  and 
addressed  him  frequently,  while  our  member  of  the  Court  seemed 
to  make  no  attempt  even  to  mingle  in  the  conference.  He  com 
plained  that  we  did  not  address  ourselves  to  him.  We  felt  it  to 
be  true,  for  he  was  a  great  deal  in  a  semi-somnolent  state,  and  we 
thought  that  he  would  be  likely  to  agree  with  us  so  far  as  he 
followed  us.  Incidental  matters  were  sometimes  settled  by  the 
president  and  Sir  A.  G.,  or  rather,  under  Sir  A.  G.,  without  his 
being  looked  to,  —  of  course  nothing  of  importance." 

Mr.  Dana  further  says  that  Mr.  X's  general  influence  with 
M.  Delfosse  "was  worse  than  nothing."  It  was  on  one  of  these 
dinners  that  the  American  member  stumbled  over  Sir  Alexander 
Gait's  name,  and  called  him  "Sir  Harker  Dandy"  and  "Sir 
Harker  Dardy." 

More  than  one  eye-witness  of  the  proceedings  of  the  tribunal 
described  the  Commission  as  follows.  M.  Delfosse  looked  bored, 
Sir  Alexander  Gait,  the  English  member,  alert  and  attentive, 
the  American  member  asleep. 

In  a  letter  of  November  30,  1877,  to  Mr.  Evarts,  Mr.  Dana, 
speaking  of  the  failure  of  any  assistance  to  M.  Delfosse  from 
the  American  member,  says  as  follows :  — 

"The  day  after  my  letter  to  you  of  the  25th  inst.,  I  had  an 
interview  with  M.  Delfosse.  As  all  was  over,  he  spoke  freely 
and  complained  that  they  received  no  aid  from  the  U.  States 
member  of  the  tribunal.  He  said  that  they  had  no  word  from 
him  during  the  taking  of  the  testimony,  which  he  was  disposed 
to  ascribe  to  delicacy.  After  the  evidence  was  in,  he  and  Sir 
A.  G.  both  wished  a  conference,  and  Sir  A.  G.  had  them  both 
at  dinner,  and  the  subject  was  started,  but  with  no  results.  Mr. 
X  had  nothing  to  say.  At  the  final  conference,  when  Sir  A.  G. 
was  fully  prepared  with  reasons,  arguments,  digested  statistics, 
etc.,  Mr.  X  had  no  arguments  or  suggestions,  or  statistics,  but 
only  stood  on  his  negative  of  all  compensation." 


350  RICHARD  HENRY  DANA,  JR. 

In  addition  to  that,  Mr.  X's  clothing  was  untidy,  his  general 
appearance  slovenly,  and  he  was  careless  and  forgetful  in  his 
tobacco-chewing  practices;  while  M.  Delfosse  was  a  European 
of  immaculate  dress  and  the  neatest  possible  habits,  and  one  who 
was  apt  to  judge  of  people  by  their  appearance  in  these  respects. 

How  such  a  man  as  Mr.  X  came  to  be  appointed  to  such  a 
position,  Mr.  Dana  told  me,  was  an  instance  of  the  favoritism 
of  the  "spoils  system."  Mr.  X  was  a  fellow  townsman  of  United 
States  Senator  Dawes,  who  secured  the  appointment,  and  Mr. 
X  "needed"  the  money  compensation. 

As  to  the  award,  Mr.  Dana  says:  "For  myself  I  do  not  think 
that  the  great  body  of  testimony,  brought  forward  on  each  side 
with  so  much  labor  and  expense,  has  been  the  basis  of  the  de 
cision.  I  think  the  decision  was  diplomatic  altogether,  and  based 
upon  mental  operations  which  could  have  been  gone  through 
with  in  substantially  the  same  manner  had  there  been  nothing 
beyond  the  two  cases  filed." 

It  seems  to  have  been  based  on  halving  the  revised  British 
demand,  with  a  penalty  attached.  The  original  British  demand 
was  for  $14,800,000.  This  was  reduced  by  the  decision  of  the 
tribunal  that  some  of  the  items  going  to  make  up  the  total,  as 
stated  in  the  official  claim,  related  to  matters  not  included  within 
the  treaty.  Cutting  these  out,  the  claim  may  well  have  been 
reduced  as  Mr.  Dana  suggests,  by  "about  one  third,"  or  to 
$10,000,000.  At  the  final  conference  of  the  Commissioners,  ac 
cording  to  Mr.  Dana's  letter  to  Secretary  of  State,  Mr.  Evarts, 
November  25,  1877:- 

"M.  Delfosse  suggested  as  a  compromise  $4,500,000  [$500,000 
less  than  half  of  $10,000,000].  It  seems  that  when  the  Commis 
sioners  came  together  to  read  the  award  to  the  agents  and  coun 
sel,  M.  Delfosse  was  induced  by  Sir  A.  Gait,  we  do  not  know 
why  or  how,  to  add  one  million.  I  suppose  it  to  have  been  on 
the  suggestion  that  Mr.  X's  refusing  to  approach  nearer  to  a 
compromise  and  raising  the  question  of  validity1  entitled  the 
British  side  to  the  utmost." 

1  Mr.  X  took  the  position  that  no  award  was  binding  unless  unani 
mous. 


HALIFAX  FISHERY  COMMISSION  351 

In  Mr.  Dana's  letter  to  Mr.  Evarts,  November  30,  after  M. 
Delfosse  "spoke  freely"  of  the  award,  he  states:  — 

"M.  Delfosse  further  said  that  it  was  again  and  again  ex 
plained  to  Mr.  X  that  his  (M.  Delfosse's)  proposal  for  four  and 
a  half  millions,  to  which  Sir  A.  Gait  assented,  was  conditional 
upon  its  being  accepted  by  Mr.  X  and  was  to  go  for  nothing 
otherwise.  .  .  .  This  was  to  explain  their  apparent  advance 
from  $4,500,000  to  $5,500,000." 

That  is,  the  award  was  to  be  half  a  million  less  than  half  the 
British  claim  if  the  American  commissioner  assented,  and  half 
a  million  more  than  half  if  he  did  not. 

During  the  course  of  the  hearings  at  Halifax,  though  not  offi 
cially  argued  by  counsel  for  Great  Britain,  it  was  frequently 
stated  in  conversation  and  put  before  M.  Delfosse  that  the  award 
of  the  Geneva  Arbitration  for  the  Alabama  Claims  had  been 
too  large,  and  that  it  was  no  more  than  fair  to  offset  this  by  a 
liberal  award  to  England  in  the  fishery  case,  which  was  a  part 
of  the  same  treaty.  M.  Delfosse,  in  conversation  in  Boston  after 
the  award,  in  trying  to  justify  it,  laughingly  remarked  that  it  was 
no  more  than  fair,  even  if  it  were  somewhat  too  large,  as  Great 
Britain  had  paid  too  much  for  the  Alabama  Claims.  M.  Del- 
fosse  also  expressed  the  general  view  that  a  small  award  would 
not  be  becoming  to  the  dignity  of  an  international  tribunal  in 
an  important  question  between  two  great  and  wealthy  countries. 

Finally,  it  has  been  stated  that  M.  Delfosse  was  influenced 
by  his  desire  to  be  appointed  as  minister  from  his  own  gov 
ernment  to  Great  Britain.  Neither  my  father,  nor  any  of  those 
that  I  have  seen  connected  with  the  case,  have  ever  for  a  moment 
believed  that  M.  Delfosse  consciously  gave  in  to  that  influence, 
though  it  was  perfectly  well  known  that  he  entertained  that 
ambition;  but  with  a  man  without  judicial  training,  the  indirect 
and  unconscious  influences  may  have  told  in  the  decision. 

It  may  be  interesting  to  the  reader  to  know  what  the  results 
of  so  great  an  award  have  been.  In  the  words  of  the  Secretary 
of  State,  Mr.  William  M.  Evarts:  "The  question  between  the 
two  countries  is  of  much  more  serious  import  than  the  .  .  . 
money  payment  involved.  The  subject  of  valuation  will  remain 


352  RICHARD  HENRY  DANA,  JR. 

as  an  occasion  of  controversy  after  the  brief  treaty  period  cov 
ered  by  the  award  has  expired."1 

As  to  the  hope  of  the  chief  counsel  for  Great  Britain  that  the 
award  might  be  a  "basis  upon  which  future  and  more  lasting 
negotiations  may  be  entered  into,  and  so  a  source  of  continued 
national  and  local  irritation  may  be  entirely  removed,"  the  joint 
arrangement  of  free  trade  in  fish  and  free  fishing  within  the 
three-mile  limit  was  brought  to  an  end  by  the  United  States 
at  the  first  possible  moment,  namely,  in  1883.  The  United 
States  could  not,  of  course,  go  on  paying  at  such  a  rate.  The 
Canadians  are  excluded  from  selling  their  fish  in  the  United 
States,  their  chief  market,  and  the  old,  irritating  efforts  at  ex 
clusion  from  the  three-mile  limit  by  the  British  and  at  avoiding 
this  exclusion  by  the  American  fishermen  continue  to  this  day. 
To  the  more  far-sighted  of  the  English  statesmen,  the  largeness 
of  the  award,  while  a  temporary  triumph,  was  in  the  end  a  mis 
fortune.  M.  Delfosse  was  not  made  Minister  to  England. 

How,  in  the  Treaty  of  1818,  we  ever  came  to  abandon  the 
right  of  fishing  within  the  three-mile  limit,  for  which  John 
Adams  so  earnestly  and  successfully  contended  in  making  the 
treaty  of  peace  with  Great  Britain  at  the  close  of  the  Revolution 
ary  War;  why  the  Treaty  of  1818  was  so  carelessly  worded  in  its 
application  to  the  United  States  interests;  and  why  we  came  to 
concede  so  much  more  than  was  fair  in  the  Treaty  of  1871,  are 
questions  worth  asking,  and  Mr.  Dana's  answer  may  be  worth 
knowing.  He  believed  that  these  were  mistakes,  and  that  they 
arose  because  we  did  not  have  trained  diplomats  and  permanent, 
high-grade  secretaries  in  our  State  Department,  while  in  the 
Foreign  Office  and  the  diplomatic  corps  of  Great  Britain,  they 
had  able  men,  perhaps  no  more  able  than  some  of  our  negotia 
tors,  but  long  in  the  service,  with  practically  permanent  tenure, 
thoroughly  familiar  with  the  whole  history  of  such  matters, 
skilled  in  the  use  of  diplomatic  language  and  international  law 
and  able  to  take  advantage  of  our  want  of  knowledge.  We  suffer, 
equally,  in  all  our  various  departments,  as  is  now  becoming 

1  Halifax  Commission,  vol.  10,  page  xiv. 


HALIFAX  FISHERY  COMMISSION  353 

more  and  more  apparent,  for  lack  of  just  such  permanent,  well- 
trained  assistant  secretaries. 

Of  course,  it  may  be  said  of  the  Treaty  of  1818  that  our  mili 
tary  weakness  was  such  that  we  could  not  get  all  we  wanted; 
but  it  is  doubtful  if  our  representatives  knew  the  value  of  what 
they  were  giving  up  and  the  strength  of  our  original  claims.  The 
wording  of  this  treaty  has  now  brought  us  to  the  necessity  of 
making  the  new,  recent  treaty  of  April  4,  1908,  with  Great  Brit 
ain,  by  which  certain  questions  regarding  the  construction  of  the 
Treaty  of  1818  have  just  been  submitted  to  the  Hague  Tribunal. 
The  more  important  questions  were,  whether  the  right  of  the  in 
habitants  of  the  United  States  to  take  fish  on  the  coasts  of  New 
foundland,  the  Magdalen  Islands  arid  Labrador,  from  which  we 
were  not  excluded  by  the  Treaty  of  1818,  "in  common  with  the 
subjects  of"  Great  Britain,  is  subject  to  regulations  as  to  catch 
ing  fish  and  as  to  port  dues,  made  without  the  consent  of  the 
United  States,  by  Great  Britain,  Canada  and  Newfoundland; 1 
whether  the  inhabitants  of  the  United  States,  while  exercising 
these  liberties,  have  a  right  to  employ  as  members  of  their  fish 
ing  crews  persons  not  inhabitants  of  the  United  States;2  and 
finally,  from  where  must  we  measure  the  "three  marine  miles 
off  any  of  the  coasts,  bays,  creeks  or  harbors"  on  the  prohibited 
coasts  of  the  Canadian  shores?  Two  of  the  arguments  in  favor 
of  the  United  States  contention  were,  —  that  in  all  the  presenta 
tions  of  the  case  at  Halifax,  the  three-mile  limit  was  assumed 
to  be  from  the  shores,  or  from  lines  of  headlands  that  are  not 
over  six  miles  apart;  and  that  the  award  was  so  large  that  the 
right  to  diminish  the  value  of  taking  fish  by  regulation  of  sea 
sons  and  methods  could  not  have  been  taken  into  account,  as 
in  fact  it  was  not  urged  in  argument.3 

1  The  Hague  Tribunal  on  Sept.  7,  1910,  decided  that  no  port  dues 
but  "reasonable  regulations"  could  be  imposed  without  the  consent 
of  the  United  States,  but  their  reasonableness,  necessity  and  fairness 
should  be  submitted  to  a  special  expert  commission. 

2  This  right  to  employ  persons  not  inhabitants  of  the  United  States 
is  sanctioned  by  the  Hague  Tribunal. 

3  The  decision  on  this  is  against  the  United  States.    The  award 


354  RICHARD  HENRY  DANA,  JR. 

In  considering  Mr.  Dana's  argument,  it  should  be  remembered 
that  Judge  Foster  and  Mr.  Trescot  had  already  argued  for  the 
United  States,  and  Mr.  Dana  left  to  them  certain  topics  on  which 
he  hardly  touched  at  all.] 

ARGUMENT  ON  BEHALF  OF  THE  UNITED  STATES 

May  it  please  your  Excellency  and  your  Honors,  - 
Your  legislature  of  this  Province  has  set  apart  for 
our  use  this  beautiful  hall;  and  while  my  friend  and 
associate,  Mr.  Trescot,  saw  in  the  presence  of  the 
portrait  of  His  Majesty  George  III,  which  looks  down 
upon  us  from  the  walls,  an  encouragement  for  the 
settlement  of  the  matter  confided  to  us,  because  that 
king  supposed  it  settled  more  than  a  hundred  years 
ago,  I  confess  that  the  presence  of  that  figure  has 
been  to  me  throughout  most  interesting  and  even 
pathetic.  It  was  the  year  he  ascended  the  throne, 
that  the  French  were  finally  driven  from  North  Amer 
ica,  and  that  it  all  became  British  America,  from  the 
southern  coast  of  Georgia  up  to  the  North  Pole,  and 
all  these  islands  and  peninsulas  which  form  the  Gulf 
of  St.  Lawrence  passed  under  his  sceptre.  And  what  a 
spectacle  for  him  to  look  down  upon  now,  after  a  hun 
dred  years !  A  quiet  assembly  of  gentlemen,  without 
parade,  without  an  armed  soldier  at  the  gate,  settling 
the  vexed  question  of  the  fisheries,  which  in  former 
times  and  under  other  auspices  would  have  been  cause 
enough  for  war.  And  settling  them  between  whom  ? 
Between  his  old  thirteen  colonies  —  now  become  a 
republic  of  forty  millions  of  people,  bounded  by  seas 
and  zones  —  and  his  own  empire,  its  sceptre  still  held 

recommends  definite  lines  based  on  certain  enumerated  coast  points, 
which  exclude  us  from  certain  large  bays,  though  their  entrances  are 
more  than  six  miles  broad. 


HALIFAX  FISHERY  COMMISSION  355 

in  his  own  line,  by  the  daughter  of  his  own  son,  more 
extended,  and  counting  an  immensely  larger  popula 
tion  than  when  he  left  it,  showing  us  not  only  the  mag 
nitude  and  increase  of  the  Republic,  but  the  stability, 
the  security,  and  the  dignity  of  the  British  Crown. 

Yes,  gentlemen  of  the  Commission,  when  he  as 
cended  the  throne,  and  before  that,  when  his  grand 
father,  whose  portrait  also  adorns  these  walls,  sat 
upon  the  throne  of  England,  this  whole  region  was 
a  field  of  contest  between  France  and  Great  Britain. 
It  was  not  then  British  North  America.  Which  power 
should  hold  it,  with  these  islands  and  peninsulas  and 
these  fisheries  adjacent  to  and  about  it,  depended 
upon  the  issue  of  war,  and  of  wars  one  after  another. 
But  Great  Britain,  holding  certain  possessions  here, 
claimed  the  fisheries,  and  made  large  claims,  accord 
ing  to  the  spirit  of  that  day,  covering  the  Banks  of 
Newfoundland,  and  the  other  banks,  and  the  whole 
deep-sea  fishery  out  of  sight  of  land,  and  also  up  to 
the  very  shores,  within  hailing  distance  of  them, 
without  any  regard  to  a  geographical  limit  of  three 
miles,  which  is  a  very  modern  invention.  That  con 
test  was  waged,  and  the  rights  in  these  islands  and 
these  fisheries  settled  by  the  united  arms  of  Great 
Britain  and  of  New  England,  and  largely,  most 
largely,  of  Massachusetts.  Why,  Louisburg,  on  Cape 
Breton,  held  by  the  French,  was  supposed  to  be  the 
most  important  and  commanding  station,  and  to 
have  more  influence  than  any  other  upon  the  des 
tinies  of  this  part  of  the  country.  Its  reduction  was 
ordered  by  the  Legislature  of  Massachusetts.  And, 
Mr.  President,  it  was  a  force  of  between  three  and 
four  thousand  Massachusetts  men,  under  Pepperell, 
and  a  few  hundred  from  the  other  colonies,  with  one 


356  RICHARD  HENRY  DANA,  JR. 

hundred  vessels,  that  sailed  to  Louisburg,  invested 
and  took  it  for  the  British  Crown,  in  trust  for  Great 
Britain  and  her  colonies.  Gridley,  who  laid  out  the 
fortifications  at  Bunker  Hill,  and  Prescott,  who  de 
fended  them,  were  in  the  expedition  against  Louis- 
burg,  and  the  artillery  was  commanded  by  Dwight, 
maternal  ancestor  of  our  friend,  Judge  Foster.  And 
wherever  there  was  war  between  France  and  England 
for  the  possession  of  this  continent,  or  any  part  of 
it,  or  these  islands  and  these  fisheries,  the  militia  and 
volunteers  of  Massachusetts  fought  side  by  side  with 
the  regulars  of  Great  Britain.  They  fought  under 
Wolfe  at  Quebec,  under  Amherst  and  Howe  at  Ticon- 
deroga;  and,  even  at  the  confluence  of  the  Alleghany 
and  Monongahela,  Washington  saved  the  remnant 
of  Braddock's  command.  We  followed  the  British 
arms  wherever  they  sought  the  French  arms.  The 
soldiers  of  Massachusetts,  accompanying  the  British 
regulars  to  the  sickly  sugar-islands  of  the  West  Indies, 
lay  side  by  side  on  cots  in  the  same  fever-hospitals, 
and  were  buried  in  the  same  graves.  And  if  any  of 
you  shall  visit  the  Old  Country  again,  and  your  foot 
steps  lead  you  to  Westminster  Abbey,  you  will  find 
there  a  monument  to  Lord  Howe,  who  fell  at  Ticon- 
deroga,  erected  in  his  honor  by  the  Province  of  Massa 
chusetts.  And  there  let  it  stand!  an  emblem  of  the 
fraternity  and  unity  of  the  olden  times,  and  a  proof 
that  it  was  together,  by  joint  arms  and  joint  enter 
prise,  blood  and  treasure,  that  all  these  Provinces, 
and  all  the  rights  appertaining  and  connected  there 
with,  were  secured  to  the  Crown  and  the  Colonies! 

I  may  as  well  present  here,  gentlemen  of  the  Com 
mission,  as  at  any  other  time,  my  view  respecting 


HALIFAX  FISHERY  COMMISSION  357 

this  subject  of  the  right  of  deep-sea  fishery.  The  right 
to  fish  in  the  sea  is  in  its  nature  not  real,  as  the  com 
mon  law  has  it,  nor  immovable,  as  termed  by  the 
civil  law,  but  personal.  It  is  a  liberty.  It  is  a  fran 
chise,  or  a  faculty.  It  is  not  property,  pertaining  to 
or  connected  with  the  land.  It  is  incorporeal.  It  is 
aboriginal.  ...  I  speak  of  the  free-swimming  fish  of 
the  ocean,  followed  by  the  fishermen  through  the  deep 
sea;  not  of  the  crustaceous  animals  or  any  of  those 
that  connect  themselves  with  the  soil  under  the  sea, 
or  adjacent  to  the  sea,  nor  do  I  speak  of  any  fishing 
which  requires  possession  of  the  land  or  any  touching 
or  troubling  the  bottom  of  the  sea.  I  speak  of  the 
deep-sea  fishermen  who  sail  over  the  high  seas,  pur 
suing  the  free-swimming  fish  of  the  high  seas.  Against 
them,  it  is  a  question  not  of  admission,  but  of  exclu 
sion.  These  fish  are  not  property.  Nobody  owns 
them.  They  .  .  .  belong,  by  right  of  nature,  to  those 
who  take  them,  and  every  man  may  take  them  who 
can.  It  is  a  totally  distinct  question  whether,  in  taking 
them,  he  is  trespassing  upon  private  property,  the 
land  or  park  of  any  individual  holder.  .  .  .  The  fish 
erman  who  drops  his  line  into  the  sea  creates  a  value 
for  the  use  of  mankind,  and  therefore  his  work  is 
meritorious.  It  is,  in  the  words  of  Burke,  "wealth 
drawn  from  the  sea";  but  it  is  not  wealth  until  it  is 
drawn  from  the  sea. 

I  am  willing  to  put  at  stake  whatever  little  reputa 
tion  I  may  have  for  acquaintance  with  the  jurispru 
dence  of  nations  (and  the  less  reputation,  the  more 
important  to  me)  to  maintain  this  proposition,  that 
the  deep-sea  fisherman,  pursuing  the  free-swimming  fish 
of  the  ocean  with  his  net,  or  his  leaded  line,  not  touching 


358  RICHARD   HENRY  DANA,  JR. 

shores  or  troubling  the  bottom  of  the  sea,  is  no  trespasser, 
though  he  approach  within  three  miles  of  a  coast,  by 
any  established,  recognized  law  of  all  nations.  .  .  . 
The  Treaty  between  Great  Britain  and  France  of 
1839,  which  provides  for  a  right  of  exclusive  fishery 
by  the  British  on  the  British  side  of  the  Channel,  and 
by  the  French  on  the  French  side  of  the  Channel, 
each  of  three  miles,  and  measures  the  bays  by  a  ten- 
mile  line,  is  entirely  a  matter  of  contract  between 
the  two  nations.  The  Treaty  begins  by  saying,  not 
that  each  nation  acknowledges  in  the  other  the  right 
of  exclusive  fishery  within  three  miles  of  the  coast; 
nothing  of  the  kind.  It  begins  by  saying,  "  It  is  agreed 
between  the  two  nations  that  Great  Britain  shall  have 
exclusive  fishery  within  three  miles  of  the  British 
coast,  and  that  the  French  shall  have  exclusive  fishery 
within  three  miles  of  the  French  coast,"  and  then  it 
is  further  agreed  that  the  bays  shall  be  measured  by 
a  ten-mile  line.  All  arbitrary  alike,  all  resting  on 
agreement  alike,  without  one  word  which  indicates 
that  the  law  of  nations  any  more  gives  an  exclusive 
right  to  these  fisheries  for  three  miles  from  the  coasts, 
than  it  does  to  measure  the  bays  by  ten  miles.  In 
the  time  of  Queen  Elizabeth  this  matter  seemed  to 
be  pretty  well  understood  in  England.  Her  Majesty 
sent  a  commission,  an  embassy,  to  Denmark,  on  the 
subject  of  adjusting  the  relations  between  the  two 
countries,  and  among  the  instructions  given  the  am 
bassadors  were  these:  - 

"And  you  shall  further  declare  that  the  Lawe  of 
Nations  alloweth  of  Fishing  in  the  sea  everywhere; 
as  also  of  using  ports  and  coasts  of  princes  in  amitie 
for  traffique  and  avoidinge  danger  of  tempests;  so 
that  if  our  men  be  barred  thereof,  it  should  be  by  some 


HALIFAX  FISHERY  COMMISSION  359 

contract.  We  acknowledge  none  of  that  nature;  but 
rather,  of  conformity  with  the  Lawe  of  Nations  in 
these  respects,  as  declaring  the  same  for  the  removing 
of  all  clayme  and  doubt;  so  that  it  is  manifest,  by 
denying  of  this  Fishing,  and  much  more,  for  spoyling 
our  subjects  for  this  respect,  we  have  been  injured 
against  the  Lawe  of  Nations,  expresslie  declared  by 
contract  as  in  the  aforesaid  Treaties,  and  the  King's 
own  letters  of  '85." 

Though  possession  of  the  land  close  to  the  sea,  says 
this  remarkable  letter  of  instructions,  "may  yield 
some  oversight  and  jurisdiction,  yet  use  not  princes 
to  forbid  passage  or  fishing,  as  is  seen  by  our  law  of 
England."  There  is  much  more  to  the  same  effect. 
So  that  whatever  claim  of  jurisdiction  over  the  sea  a 
neighboring  nation  might  make,  whatever  claim  to 
property  in  the  soil  under  the  sea  she  might  make, 
it  was  not  the  usage  of  princes  to  forbid  passage, 
innocent  passage,  or  the  fishing  and  catching  of  the 
free-swimming  fish,  wherever  they  might  be  upon  the 
high  seas. 

I  wish  particularly  to  impress  upon  your  Honors, 
that  all  the  North  British  Colonies  were  in  possession 
and  enjoyment  of  the  liberty  of  fishing  over  all  the 
north-western  Atlantic,  its  gulfs  and  bays.  There  is 
no  word  indicating  the  existence  of  either  a  three- 
mile  line  of  exclusion,  or  of  an  attaching  the  right  of 
fishing  to  the  geographical  position  of  the  colony. 
No,  gentlemen,  the  Massachusetts  fisherman  who 
dropped  his  leaded  line  by  the  side  of  the  steep  coast 
of  Labrador,  or  within  hail  of  the  shore  of  the  Mag 
dalen  Islands,  did  it  by  precisely  the  same  right  that 
he  fished  in  Massachusetts  Bay,  off  Cape  Cod  or 


360  RICHARD  HENRY  DANA,  JR. 

Cape  Ann.  Nobody  knew  any  difference  in  the 
foundation  or  the  test  of  such  rights,  in  those  days. 
It  was  a  common  heritage,  not  dependent  upon 
political  geography.  As  I  have  said,  it  was  con 
quered  by  the  common  toil,  blood  and  treasure,  and 
held  as  a  common  right  and  possession. 

At  the  close  of  the  [Revolutionary]  war,  the  Treaty 
of  1783  was  made.  Now,  at  the  time  when  the  Treaty 
of  1783  was  made,  Great  Britain  did  not  claim  to  have 
conquered  America,  or  to  have  taken  from  us  by  mili 
tary  force  any  of  our  rights ;  and  the  consequence  was 
that  in  framing  the  Treaty  of  1783,  while  we  altered 
by  common  consent  some  of  the  boundary  lines,  none 
by  right  of  conquest,  it  was  declared  that  the  people 
of  the  United  States  shall  "continue  to  enjoy  un 
molested  the  right  to  take  fish  of  every  kind  on  the 
British  banks,  and  all  other  banks  of  Newfoundland; 
also  in  the  Gulf  of  St.  Lawrence,  and  all  other  places 
in  the  sea  where  the  inhabitants  of  both  countries 
used  at  any  time  heretofore  to  fish."  What  could  be 
stronger  than  that?  It  was  an  acknowledgment  of  a 
continued  right  possessed  long  before.  And  if  any 
question  of  its  construction  arose,  it  appealed  to  what 
they  had  been  heretofore  accustomed  to  do;  "where 
the  inhabitants  of  both  countries  used  at  any  time 
heretofore  to  fish." 

How  was  it  construed  by  British  statesmen?  Is 
there  any  doubt  about  it?  I  take  it  my  brethren  of 
the  Dominion  bar  will  consider  Lord  Loughborough 
good  authority.  He  said  these  words  in  the  House 
of  Lords  respecting  the  fishery  clause  of  the  Treaty: 
"  The  fisheries  were  not  conceded,  but  recognized  as  a 
right  inherent  in  the  Americans,  which,  though  no  longer 


HALIFAX  FISHERY  COMMISSION  361 

British  subjects,  they  are  to  continue  to  enjoy  unmo 
lested."  The  same  thing,  substantially,  was  said  by 
Lord  North,  who  had  been,  we  are  told  now  by  his 
biographers,  the  unwilling,  but  certainly  the  sub 
servient  instrument,  in  the  hands  of  his  king,  for  try 
ing  to  deprive  us  of  this,  as  well  as  our  other  rights. 
We  then  did  continue  to  enjoy  them,  as  we  had  from 
1620  down.  We  had  as  much  right  to  them  as  the 
British  Crown,  because  it  was  our  bow  and  our  spear 
that  helped  to  conquer  them.  Then  came  the  war  of 
1812;  and  we  had  enjoyed  the  fisheries  freely,  without 
geographical  limit,  down  to  that  time.  The  war  of 
1812  certainly  did  not  result  in  the  conquest  of  Amer 
ica,  either  maritime  or  upon  the  land.  It  was  fought 
out  in  a  manly  way  between  two  strong  people,  with 
out  any  very  decided  result;  but  after  the  war,  in 
1814,  .  .  .  the  parties  could  not  agree  [as  to  the  fish 
eries],  and  it  went  on  in  that  way  until  1818;  and 
then  came  a  compromise,  and  nothing  but  a  com 
promise.  The  introduction  to  the  Treaty  of  1818  says : 
"Whereas  differences  have  arisen  respecting  the  lib 
erty  claimed  by  the  United  States  and  inhabitants 
thereof  to  take,  dry  and  cure  fish  in  certain  coasts, 
harbors,  creeks  and  bays  of  His  Majesty's  dominions 
in  America,  it  is  agreed  between  the  high  contracting 
parties."  It  is  all  based  upon  "differences,"  and  all 
"agreed." 

But  England  was  a  powerful  nation.  She  fought 
us  in  1812  and  1814  with  one  hand,  —  I  acknowledge 
it,  though  it  may  be  against  the  pride  of  American 
citizens,  —  while  she  was  fighting  nearly  all  Europe 
with  the  other;  but  she  was  now  at  peace.  Both 
nations  felt  strong;  both  nations  were  taking  breath 


362  RICHARD  HENRY  DANA,  JR. 

after  a  hard  conflict,  and  it  was  determined  that 
there  should  be  an  adjustment;  and  there  was  an 
adjustment,  and  it  was  this.  Great  Britain  tacitly 
waived  all  claim  to  exclude  us  from  any  part  of  the 
high  seas.  She  expressly  waived  all  right  to  exclude 
us  from  the  coasts  of  Labrador,  from  Mount  Joly, 
northward  and  eastward  indefinitely,  through  those 
tumbling  mountains  of  ice,  where  we  formerly  "pur 
sued  our  gigantic  game."  She  expressly  withheld  all 
claim  to  exclude  us  from  the  Magdalen  Islands,  and 
from  the  southern,  western,  and  northern  shores  of 
Newfoundland;  and,  as  to  all  the  rest  of  the  Bay  of 
St.  Lawrence  and  the  coasts  of  Nova  Scotia  and  New 
Brunswick,  we  agreed  to  submit  to  her  claim  to  ex 
clude  us.  So  that  it  stood  thus:  that,  under  that 
Treaty,  and  only  under  that  Treaty,  we  admitted 
that  Great  Britain  might  exclude  us,  for  a  distance 
of  three  miles,  from  fishing  in  all  the  rest  of  her  pos 
sessions  in  British  North  America,  except  those  where 
it  was  expressly  stipulated  she  should  not  attempt 
to  do  it.  So  she  had  a  right  to  exclude  us  for  a  dis 
tance  of  three  miles  from  the  shores  of  Cape  Breton, 
Prince  Edward  Island,  Nova  Scotia,  a  portion  of  New 
foundland,  and  New  Brunswick,  and  what  has  now 
become  the  Province  of  Quebec,  while  she  could  not 
exclude  us  from  the  coast  of  Labrador,  the  Magdalen 
Islands,  and  the  rest  of  Newfoundland.  There  was 
the  compromise.  We  got  all  that  was  then  thought 
useful,  in  the  times  of  cod-fishing,  with  the  right  to 
dry  nets  and  cure  fish  wherever  private  property  was 
not  involved.  The  Treaty  of  1818  lasted  until  1854, 
-  thirty-six  years.  So  we  went  on  under  that  com 
promise,  with  a  portion  of  our  ancient  rights  secured 
and  another  portion  suspended,  and  nothing  more. 


HALIFAX  FISHERY  COMMISSION  363 

Great  changes  took  place  in  that  period.  The  mack 
erel  fishery  rose  into  importance.  Your  Honors  have 
had  before  you  the  interesting  spectacle  of  an  old  man 
who  thinks  that  he  was  the  first  who  went  from  Mas 
sachusetts  into  this  Gulf  and  fished  for  mackerel,  in 
1827,  or  thereabouts.  He  probably  was.  But  mack 
erel-fishing  did  not  become  a  trade  or  business  until 
considerably  after  1830,  when  the  catch  of  mackerel 
became  important  to  us  as  well  as  to  the  Provinces. 

But  there  were  great  difficulties  attending  the  exer 
cise  of  this  claim  of  exclusion  —  very  great  difficul 
ties.  There  always  have  been,  there  always  must  be, 
and  I  pray  there  always  shall  be  such,  until  there  be 
free  fishing  as  well  as  free  trade  in  fish.  They  put 
upon  the  stand  Capt.  Hardinge,  of  Her  Majesty's 
navy,  now  or  formerly,  who  had  taken  an  active  part 
in  superintending  these  fisheries  and  driving  off  the 
Americans.  We  asked  him  whether  the  maintenance 
of  this  marine  police  was  not  expensive.  He  said 
that  it  was  expensive  in  the  extreme,  that  it  cost 
£100,000  —  I  believe  that  was  the  sum  named.  He 
did  not  know  the  exact  amount,  but  his  language  was 
quite  strong  as  to  the  expensiveness  of  excluding  the 
Americans  from  these  grounds,  of  maintaining  these 
cruisers.  But  it  also  brought  about  difficulties  be 
tween  Great  Britain  and  her  Provinces.  The  Pro 
vincial  authorities,  on  the  12th  of  April,  1866,  after 
this  time  (but  they  acted  throughout  with  the  same 
purpose  and  the  same  spirit),  undertook  to  say  that 
every  bay  should  be  a  British  private  bay  which  was 
not  more  than  ten  miles  in  width;  following  no  pre 
tence  of  international  law,  but  the  special  treaty 
between  Great  Britain  and  France;  and  afterwards 
they  gave  out  licenses  for  a  nominal  sum,  as  they 


364  RICHARD  HENRY  DANA,  JR. 

said,  for  the  purpose  of  obtaining  a  recognition  of 
their  right.  They  did  not  care,  they  said  then,  how 
much  the  Americans  fished  within  the  three  miles, 
but  they  wished  them  to  pay  a  "nominal  sum  for  a 
license,"  as  a  recognition  of  the  right.  Well,  the 
"nominal  sum"  was  fifty  cents  a  ton;  but  by  and  by 
the  Colonial  Parliament  thought  that  nothing  would 
be  a  "nominal  sum"  unless  it  was  a  dollar  a  ton,  and 
at  last  they  considered  that  the  best  possible  "nomi 
nal  sum"  was  two  dollars  a  ton. 

But  Her  Majesty's  government  took  a  very  differ 
ent  view  of  that  subject,  and  wherever  there  has  been 
an  attempt  to  exclude  American  fishermen  from  the 
three-mile  line,  there  has  been  a  burden  of  expense 
on  Great  Britain,  a  conflict  between  the  Colonial 
Department  at  London  and  the  Provincial  authori 
ties  here,  —  Great  Britain  always  taking  the  side  of 
moderation,  and  the  Provincial  Parliaments  the  side 
of  extreme  claim  and  untiring  persecution.  Then 
there  was  a  difficulty  in  settling  the  three-mile  line. 
What  is  three  miles?  It  cannot  be  measured  out,  as 
upon  the  land.  It  is  not  staked  out  or  buoyed  out. 
It  depends  upon  the  eye-sight  and  judgment  of  inter 
ested  men,  acting  under  every  possible  disadvantage. 
A  few  of  the  earlier  witnesses  called  by  my  learned 
friends  for  the  Crown  undertook  to  say  that  there  was 
no  difficulty  in  ascertaining  the  three-mile  line;  but 
I  happened  to  know  better,  and  we  called  other  wit 
nesses,  and  at  last  nobody  pretended  that  there  was 
not  great  difficulty.  Why,  for  a  person  upon  a  vessel 
at  sea  to  determine  the  distance  from  shore,  every 
thing  depends  upon  the  height  of  the  land  he  is  look 
ing  at.  If  it  is  very  high,  it  will  seem  very  much  nearer 
than  if  it  is  low  and  sandy.  The  state  of  the  atmos- 


HALIFAX  FISHERY  COMMISSION  365 

phere  affects  it  extremely.   A  mountain  side  on  the 
shore  may  appear  so  near  in  the  forenoon  that  you 
feel  as  if  you  can  almost  touch  it  with  your  fingers' 
ends,  while  in  the  afternoon  it  is  remote  and  shadowy, 
too  far  altogether  for  an  expedition  with  an  ordinary 
day's  walk  to  reach  it.    Now,  every  honest  mariner 
must  admit  that  there  is  great  difficulty  in  determin 
ing  whether  a  vessel  is  or  is  not  within  three  miles 
of  the  shore,  when  she  is  fishing.  But  there  is,  further, 
another  difficulty.    "Three  miles  from  the  shore," 
what  shore?  When  the  shore  is  a  straight  or  curved 
line,  it  is  not  difficult  to  measure  it;  but  the  moment 
you  come  to  bays,  gulfs,  and  harbors,  then  what  is 
the  shore?    The  headland  question  then  arose,  and 
the  Provincial  officials  told  us,  —  the  Provinces  by 
their  acts,  and  the  proper  officers  by  their  proclama 
tions,  and  the  officers  of  their  cutters,  steam  or  sail, 
-  told  our  fishermen  upon  their  quarter-decks,  that 
"the  shore"  meant  a  line  drawn  from  headland  to 
headland,  and  they  undertook  to  draw  a  line  from  the 
North  Cape  to  the  East  Cape  of  Prince  Edward 
Island,  and  to  say  that  "the  shore"  meant  that  line; 
and  then  they  fenced  off  the  Straits  of  Northumber 
land;  they  drew  another  line  from  St.  George's  to 
the  Island  of  Cape  Breton;  they  drew  their  headland 
lines  wherever  fancy  or  interest  led  them.    And  not 
only  is  it  true  that  they  drew  them  at  pleasure,  but 
they  made  a  most  extreme  use  of  that  power.    We 
did  not  suffer  so  much  from  the  regular  navy,  but  the 
Provincial  officers,  wearing  for  the  first  time  in  their 
lives  shoulder-straps  and  put  in  command  of  a  vessel, 
"dressed  in  a  little  brief  authority,  played  such  fan 
tastic  tricks  before  high  heaven"  as  might  at  any 
moment,  but  that  it  was  averted  by  good  fortune, 


366  RICHARD  HENRY  DANA,  JR. 

have  plunged  the  two  countries  into  war.  Why,  that 
conflict  between  Patillo  and  Bigelow  amused  us  at 
the  time ;  but  I  think  your  Honors  were  shocked  when 
you  thought  that,  as  Patillo  escaped,  was  pursued, 
and  the  shots  fired  by  his  pursuers  passed  through  his 
sail,  and  tore  away  part  of  his  mast  and  entered  the 
hull,  if  they  had  shed  a  drop  of  American  blood,  it 
might  the  "multitudinous  seas  incarnadine"  in  war. 
Why,  people  do  not  go  to  war  solely  for  interest,  but 
for  honor,  and  every  one  felt  relieved,  drew  a  freer 
breath,  when  he  learned  that  no  such  fatal  result 
followed.  None  of  us  would  like  to  take  the  risk  of 
having  an  American  vessel  beyond  the  three  miles,  but 
supposed  to  be  within  it,  or  actually  within  it  for 
an  innocent  purpose,  attacked  by  a  British  cutter, 
or  attacked  because  she  was  within  three  miles  from 
a  headland  line,  and  blood  shed  in  the  encounter. 
Now,  Great  Britain  felt  that,  and  felt  it  more  than 
the  Provinces  did,  because  she  had  not  the  same  money 
interest  to  blind  her  to  the  greatness  of  the  peril. 

Nor  is  that  all,  by  any  means.  There  was  a  further 
difficulty.  No  one  could  know  what  would  become 
of  us  when  we  got  into  court.  There  was  a  conflict 
of  legal  decisions.  One  vessel  might  go  free,  when 
under  the  same  circumstances  another  vessel  might 
be  condemned.  The  Treaty  of  1818  did  not  allow  us 
to  go  within  three  miles  of  certain  shores,  except  for 
the  purposes  of  shelter,  and  getting  wood  or  supplies, 
and  prohibited  fishing  within  the  three  miles.  The 
act  of  the  59th  of  George  III  was  the  act  intended  to 
execute  that  treaty.  That  act  provided,  that,  "if 
any  such  foreign  vessel  is  found  fishing,  or  preparing 
to  fish,  or  to  have  been  fishing,  in  British  waters, 


HALIFAX  FISHERY  COMMISSION  367 

within  three  miles  of  the  coast,  such  vessel,  her  tackle, 
etc.,  and  cargo  shall  be  forfeited."  That  was  the 
language  of  the  Statute  of  George  III,  and  of  the  Do 
minion  statutes.  Is  it  not  plain  enough,  —  it  seems 
to  me,  it  has  seemed  so  to  all  Americans,  I  think,  — 
that  that  statute  was  aimed,  as  the  treaty  was,  against 
fishing  within  three  miles?  But  in  one  court  the 
learned  judge  who  presides  over  it  —  a  man  of  learn 
ing  and  ability,  recognized  in  America  and  in  the 
Provinces,  therefore  giving  his  decision  the  greater 
weight  —  decided  two  points  against  us.  We  had  sup 
posed  that  the  statute  meant  "for  fishing  within 
three  miles  you  will  be  condemned,"  and  in  order 
that  it  should  not  be  required  that  a  man  should  be 
caught  in  the  very  act  of  drawing  up  fish  (which  would 
be  almost  impossible),  it  was  explained  by  saying, 
"or  caught  having  fished  or  preparing  to  fish" 
meaning  such  acts  as  heaving  his  vessel  to,  preparing 
his  lines,  throwing  them  out,  and  the  like.  The 
learned  court  decided,  first,  that  buying  bait,  and 
buying  it  on  shore,  was  "preparing  to  fish,"  within 
the  meaning  of  the  statute.  If  an  American  skipper 
went  into  a  shop,  leaned  over  the  counter,  and  bar 
gained  with  a  man  who  had  bait  to  sell  on  shore,  he 
was  "preparing  to  fish,"  and,  as  he  certainly  was 
within  three  miles  of  the  shore,  his  preparation  was 
made  within  three  miles;  and  the  judge  treated  it  as 
immaterial  whether  he  intended  to  violate  the  pro 
vision  of  the  treaty  by  fishing  within  three  miles  of 
the  shore,  so  long  as  he  was  preparing,  within  three 
miles,  to  fish  anywhere  in  the  deep  sea,  on  the  Banks 
of  Newfoundland,  or  in  American  waters.  Then  came 
the  decision  of  the  learned  judge  of  New  Brunswick 
(they  were  both  in  1871),  who  said  that  buying  bait 


368  RICHARD  HENRY  DANA,  JR. 

was  not  the  "preparing  to  fish"  at  which  the  statute 
was  aimed ;  and  further,  that  it  was  essential  to  prove 
that  the  fishing  intended  was  to  be  within  three  miles 
of  the  shore.  There  was  a  conflict  of  decisions,  and 
we  did  not  know  where  we  stood. 

Another  effect  of  this  restriction  was,  that  it 
brought  down  upon  the  Dominion  fishermen  the 
statute  of  the  United  States,  laying  a  duty  of  two 
dollars  a  barrel  upon  every  barrel  of  mackerel,  and 
one  dollar  a  barrel  upon  every  barrel  of  herring.  That 
statute  was,  —  and  I  shall  presently  have  the  honor 
to  cite  the  evidence  upon  that  point,  that  I  may  not 
be  supposed  to  rely  upon  assertion,  —  that  statute 
was,  in  substance,  prohibitory.  The  result  was,  that 
it  killed  all  the  vessel-fishing  of  these  Provinces.  They 
had  no  longer  seamen  who  went  to  sea  in  ships.  A 
shore-fishery  sprung  up  for  the  use  of  the  people 
themselves,  and  was  gradually  somewhat  extended 
-I  mean,  a  boat-fishery  around  the  shores.  But, 
as  I  shall  cite  authorities  to  show,  as  I  hope  that  your 
Honors  already  believe,  that  the  first  effect  was  to 
draw  away  from  these  Provinces  the  enterprising  and 
skilled  fishermen  who  had  fished  in  their  vessels  and 
sent  their  catches  to  the  American  market.  It  drew 
them  away  to  the  American  vessels,  where  they  were 
able,  as  members  of  American  crews,  to  take  their 
fish  into  market  free  of  duty. 

There  was,  at  the  same  time,  a  desire  growing  on 
both  sides  for  reciprocity  of  trade;  and  it  became 
apparent  that  there  could  be  no  peace  between  these 
countries  until  this  attempt  at  exclusion  by  imaginary 
lines,  always  to  be  matters  of  dispute,  was  given  up, 
-  until  we  came  back  to  our  ancient  rights  and  posi 
tion.  It  was  more  expensive  to  Great  Britain  than 


HALIFAX  FISHERY  COMMISSION  369 

to  us.  It  made  more  disturbance  in  the  relations 
between  Great  Britain  and  her  provinces  than  it  did 
between  Great  Britain  and  ourselves ;  but  it  put  every 
man's  life  in  peril;  it  put  the  results  of  every  man's 
labor  in  peril;  and  for  what?  For  the  imaginary  right 
to  exclude  a  deep-sea  fisherman  from  dropping  his 
hook  or  his  net  into  the  water  for  the  free-swimming 
fish,  that  have  no  habitat,  that  are  the  property  of 
nobody,  but  are  created  to  be  caught  by  fishermen, 
prcedce  humani  generis.  So  at  last  it  was  determined 
to  provide  a  treaty  by  which  all  this  matter  should 
be  set  aside,  and  we  should  fall  back  upon  our  own 
early  condition. 

Upon  the  question,  "How  is  the  three-mile  line 
to  be  determined?"  we  find  everything  utterly  afloat 
and  undecided.  My  purpose  in  making  these  remarks 
is,  in  part,  to  show  your  Honors  what  a  precarious 
position  a  State  holds  which  undertakes  to  set  up 
this  right  of  exclusion,  and  to  put  it  in  execution. 
The  international  law  makes  no  attempt  to  define 
what  is  "coast."  We  know  well  enough  what  a 
straight  coast  is  and  what  a  curved  coast  is,  but  the 
moment  the  jurists  come  to  bays,  harbors,  gulfs  and 
seas,  they  are  utterly  afloat,  —  as  much  so  as  the  sea 
weed  that  is  swimming  up  and  down  the  channels. 
They  make  no  attempt  to  define  it,  either  by  distance 
or  by  political  or  natural  geography.  They  say  at 
once:  "It  is  difficult,  where  there  are  seas  and  bays." 
Names  will  not  help  us.  The  Bay  of  Bengal  is  not 
national  property,  it  is  not  the  king's  chamber;  nor 
is  the  Bay  of  Biscay,  nor  the  Gulf  of  St.  Lawrence, 
nor  the  Gulf  of  Mexico.  An  inlet  of  the  sea  may  be 
called  a  "bay,"  and  it  may  be  two  miles  wide  at  its 


370  RICHARD  HENRY  DANA,  JR. 

entrance;  or  it  may  be  called  a  "bay,"  and  it  may 
take  a  month's  passage  in  an  old-fashioned  sailing 
vessel  to  sail  from  one  headland  to  the  other.  What 
is  to  be  done  about  it?  If  there  is  to  be  a  three-mile 
line  from  the  coast,  the  natural  result  is,  that  that 
three-mile  line  should  follow  the  bays.  The  result 
then  would  be,  that  a  bay  more  than  six  miles  wide 
was  an  international  bay,  while  one  six  miles  wide, 
or  less,  would  be  a  territorial  bay.  Tha.t  is  the  natural 
result.  Well,  nations  do  not  seem  to  have  been  con 
tented  with  this.  France  has  made  a  treaty  with 
England,  saying  that,  as  between  them,  anything  less 
than  ten  miles  wide  shall  be  a  territorial  bay. 

The  difficulties  on  that  subject  are  inherent,  and, 
to  my  mind,  they  are  insuperable.  England  claimed 
to  exclude  us  from  fishing  in  the  Bay  of  Fundy;  and 
it  was  left  to  referees,  of  whom  Mr.  Joshua  Bates  was 
umpire,  and  they  decided  that  the  Bay  of  Fundy  was 
not  a  territorial  bay  of  Great  Britain,  but  a  part  of 
the  high  seas.  This  decision  was  put  partly  upon  its 
width,  but  the  real  ground  was,  that  one  of  the  as 
sumed  headlands  belonged  to  the  United  States,  and 
it  was  necessary  to  pass  the  headland  in  order  to  get 
to  one  of  the  ports  of  the  United  States.  For  these 
special  reasons,  the  Bay  of  Fundy,  whatever  its 
width,  was  held  to  be  a  public  and  international 
bay. 

[In  the  case  of  Queen  v.  Cunningham,  Bell's  Cr. 
Cas.  p.  72,  it  was  held  that  Great  Britain  had  crimi 
nal  jurisdiction  over  a  vessel  ninety  miles  from  the 
mouth  of  the  Bristol  Channel,  though  over  three 
miles  from  any  land;  while  in  the  Franconia  case, 
2  Ex.  D.  159,  it  was  held  that  there  was  no  such  juris- 


HALIFAX  FISHERY  COMMISSION  371 

diction  within  three  miles  of  the  shore  on  the  side  of 
the  more  open  English  Channel.] 

This  naturally  leads  to  the  question:  "Does  fishing 
go  with  the  three-mile  line?"  I  have  had  the  honor 
to  say  to  this  tribunal,  that  there  is  no  decision  to 
that  effect,  though  I  admit  that  there  is  a  great  deal 
of  loose  language  in  that  direction.  I  do  not  raise  any 
question  respecting  those  fish  that  adhere  to  the  soil, 
or  to  the  ground  under  the  sea.  But  on  what  does 
that  three-mile  jurisdiction  rest,  and  what  is  the 
nature  of  it?  I  suppose  we  can  go  no  further  than  this 
-  that  it  rests  upon  the  necessities  of  the  bordering 
nation,  —  the  necessity  of  preserving  its  own  peace 
and  safety,  and  of  executing  its  own  laws.  I  do  not 
think  that  there  is  any  other  test.  Then  the  question 
may  arise,  and  does,  whether,  in  the  absence  of  any 
attempt  by  statute  or  treaty  to  prohibit  a  foreign 
fisherman  from  following  with  the  line  or  the  seine 
or  net,  the  free-swimming  fish  within  that  belt,  his 
doing  so  makes  him  a  trespasser  by  any  established 
law  of  nations?  I  am  confident  it  does  not.  That,  may 
it  please  the  tribunal,  is  the  nature  of  this  three-mile 
exclusion,  for  the  relinquishment  of  which  Great 
Britain  asks  us  to  make  pecuniary  compensation. 
It  is  one  of  some  importance  to  her,  a  cause  of  con 
stant  trouble,  and,  as  I  shall  show  you,  —  as  has  been 
shown  you  already  by  my  predecessors,  —  of  very 
little  pecuniary  value  to  England,  in  sharing  it  with 
us,  or  to  us  in  obtaining  our  share,  but  a  very  danger 
ous  instrument  for  two  nations  to  play  with. 

I  would  say  one  word  here  about  the  decision  in  the 
Privy  Council  in  1877,  respecting  the  territorial 
rights  in  Conception  Bay.  I  have  read  it  over;  and 
though  I  have  very  great  respect  for  the  common-law 


372  RICHARD  HENRY  DANA,  JR. 

lawyer,  Mr.  Justice  Blackburn,  who  was  called  upon 
to  pronounce  upon  a  question  entirely  novel  to  him, 
I  believe  that  if  your  Honors  think  it  at  all  worth 
while  to  look  over  this  opinion,  in  which  he  under 
takes  to  say  that  Conception  Bay  is  an  interior  bay 
of  Newfoundland,  and  not  public  waters,  although 
it  is  some  fifteen  or  more  miles  wide,  you  will  find  that 
he  makes  the  statement,  which  is  true,  that  an  Act 
of  Parliament  is  binding  upon  him,  whether  the  act 
be  in  conformity  with  international  law  or  not.  But 
the  act  is  not  binding  upon  you,  nor  is  the  decision. 
But  there  is  nothing  in  the  Act  of  Parliament  which 
speaks  upon  that  subject.  It  is  the  Act  59  George 
III,  intended  to  carry  out  the  Treaty  of  1818,  and  for 
punishing  persons  who  are  fishing  within  the  bays; 
and  he  infers  from  that,  by  one  single  jump,  without 
any  authority  whatever  of  judicial  decision  or  legis 
lative  language,  that  it  must  have  meant  to  include 
such  bays  as  the  bay  in  question.  (Direct  U.  S.  Cable 
Co.  v.  Anglo-American  Telegraph  Co.,  English  Law 
Reports,  Appeal  Cases,  Part  2,  p.  394.) 

This  state  of  things  lasted  until  the  Treaty  of  1854, 
commonly  called  the  Reciprocity  Treaty.  The  great 
feature  of  that  treaty,  the  only  one  we  care  about 
now,  is,  that  it  put  us  back  into  our  original  condi 
tion.  It  left  us  in  possession  of  our  general  right.  It 
made  no  attempt  to  exclude  us  from  fishing  any 
where  within  the  Gulf  of  St.  Lawrence,  and  it  allowed 
no  geographical  limits.  And  from  1854  to  1866  we 
continued  to  enjoy  and  to  use  the  free  fishery,  as  we 
had  enjoyed  and  used  it  from  1620  down  to  1818. 

But  the  Treaty  of  1854  was  terminated,  as  its 
provisions  permitted,  by  notice  from  the  United 
States.  And  why?  Great  Britain  had  obtained  from 


HALIFAX  FISHERY  COMMISSION  373 

us  a  general  free  trade.  Large  parts  of  the  United 
States  thought  that  free  trade  pressed  hardly  upon 
them.  I  have  no  doubt  it  was  a  selfish  consideration. 
I  think  almost  every  witness  who  appeared  upon  the 
stand  at  last  had  the  truthfulness  to  admit,  that  when 
he  sustained  either  duties  or  exclusion,  it  was  upon 
the  selfish  motive  of  pecuniary  benefits  to  himself, 
his  section,  his  state,  or  his  country;  and  if  that  were 
the  greatest  offence  that  nations  or  individual  poli 
ticians  committed,  I  think  we  might  well  feel  our 
selves  safe.  We  had  received,  in  return  for  this 
advantage,  a  concession  from  Great  Britain  of  our 
general  right  to  fish,  as  we  always  had  fished,  without 
geographical  exclusion.  My  learned  friend,  Judge 
Foster,  read  to  you  (which  I  had  not  seen  before,  and 
which  was  very  striking)  the  confidential  report  of 
Consul  Sherman,  of  Prince  Edward  Island,  in  1864. 
I  dare  say  my  learned  friend,  the  counsel  from  that 
Island,  knows  him.  Now,  that  is  a  report  of  great 
value,  because  it  was  written  while  the  Treaty  was 
in  existence,  and  before  notice  had  been  given  by  our 
government  of  the  intention  to  repeal  it.  It  was  his 
confidential  advice  to  his  own  country  as  to  whether 
our  interests,  as  he  had  observed  them,  were  pro 
moted  by  it;  and  he  said,  if  the  Reciprocity  Treaty 
was  considered  as  a  boon  to  the  United  States,  by 
securing  to  us  the  right  to  inshore  fishing,  it  had  con 
spicuously  failed,  and  our  hopes  had  not  been  real 
ized.  I  think  these  are  his  very  words.  He  spoke 
with  the  greatest  strength  to  his  country,  writing 
from  Prince  Edward  Island,  which  claims  to  furnish 
the  most  important  inshore  fishery  of  any,  and  de 
clared  that,  so  far  as  the  United  States  was  concerned, 
the  benefit  that  came  from  that  was  illusory,  and  it 


374  RICHARD  HENRY  DANA,  JR. 

was  not  worth  while  for  us  any  longer  to  pay  any 
thing  for  it.  And  that,  as  your  Honors  have  seen,  and 
as  I  shall  have  the  pleasure  to  present  still  further 
by-and-by,  was  borne  out  by  the  general  state  of 
feeling  in  America.  The  result  was,  that  in  1866  the 
Reciprocity  Treaty  was  repealed.  That  repeal  re 
vived,  as  my  country  admitted,  the  Treaty  of  1818; 
and  we  again  laid,  of  course,  the  duties  on  the  British 
importation  of  mackerel  and  herring.  We  were 
remitted  to  the  antiquated  and  most  undesirable 
position  of  exclusion;  but  we  remained  in  that  posi 
tion  only  five  years,  from  1866  until  1871,  until  a 
new  treaty  could  be  made,  and  a  little  while  longer, 
until  it  could  be  put  into  operation.  What  was  the 
result  of  returning  to  the  old  system  of  exclusion? 
Why,  at  once  the  cutters  and  the  ships  of  war,  that 
were  watching  these  coasts,  spread  their  sails;  they 
stole  out  of  the  harbors  where  they  had  been  lurking; 
they  banked  their  fires;  they  lay  in  wait  for  the 
American  vessels,  and  they  pursued  them  from  head 
land  to  headland,  and  from  bay  to  bay;  sometimes  a 
British  officer  on  the  quarter-deck,  —  and  then  we 
were  comparatively  safe,  —  but  sometimes  a  new- 
fledged  Provincial,  a  temporary  officer,  and  then  we 
were  anything  but  safe.  .  .  .  Not  only  did  it  revive 
the  expensive  and  annoying  and  irritating  and  danger 
ous  system  of  revenue-cutters,  and  marine  police,  up 
and  down  the  coast,  telegraphing  and  writing  to  one 
another,  and  burdening  the  Provinces  with  the  ex 
pense  of  their  most  respectable  and  necessary  main 
tenance;  but  it  revived,  also,  the  collisions  between 
the  Provinces  and  the  Crown;  and  when  the  Pro 
vincial  governments  undertook  to  lay  down  a  ten-mile 
line,  and  say  to  the  cutters,  "Seize  any  American 


HALIFAX  FISHERY  COMMISSION  375 

vessel  found  within  three  miles  of  a  line  drawn  from 
headland  to  headland,  ten  miles  apart,"  such  alarm 
did  it  cause  in  Great  Britain,  that  the  Secretary  of 
State  did  not  write,  but  telegraphed  instantly  to  the 
Provinces,  that  no  such  thing  could  be  permitted,  and 
that  they  could  carry  it  no  further  than  the  six-mile 
rule.  Then  attempts  were  made  to  sell  licenses.  Great 
Britain  said:  "Do  not  annoy  these  Americans;  we 
are  doing  a  very  disagreeable  thing;  we  are  trying  to 
exclude  them  from  an  uncertain  three-mile  line;  we 
would  rather  give  up  all  the  fish  in  the  ocean  than  to 
have  anything  to  do  with  it;  but  you  insist  upon  it; 
do  not  annoy  those  Americans ;  give  them  a  license,  - 
just  for  a  nominal  fee."  So  they  charged  a  nominal 
fee,  as  I  have  said,  of  fifty  cents  a  ton,  which  was 
afterwards  raised  --  they  know  why,  we  do  not  —  to 
a  dollar.  We  paid  the  fifty-cent  fee,  and  some  Ameri 
cans  paid  the  dollar  fee,  —  and  why?  They  have  told 
you  why.  Not  because  they  thought  the  right  to  fish 
within  three  miles  was  worth  that  sum,  but  it  was 
worth  that  sum  to  escape  the  dangers  and  annoyances 
which  beset  them,  whether  they  were  innocent  or 
guilty  under  the  law.  Then  at  last  the  Provinces  .  .  . 
raised  it  to  an  impossible  sum,  --  two  dollars  a  ton; 
and  we  would  not  pay  it.  What  led  them  to  raise  it? 
What  motive  could  there  have  been?  They  lost  by  it. 
Our  vessels  did  not  pay  it.  Why,  this  was  the  result, 
-I  do  not  say  it  was  the  motive,  --  that  it  left  our 
fishermen  unprotected,  and  brought  out  their  cutters 
and  cruisers,  and  that  whole  tribe  of  harpies  that  line 
the  coast,  like  so  many  wreckmen,  ready  to  seize  upon 
any  vessel  and  take  it  into  port  and  divide  the  plunder. 
It  left  us  a  prey  to  them,  and  unprotected.  It  also 
revived  the  duties,  for  we,  of  course,  restored  the 


376  RICHARD  HENRY  DANA,  JR. 

duty  of  two  dollars  a  barrel  on  the  mackerel,  and  one 
dollar  a  barrel  on  the  herring.  It  caused  their  best 
fishermen  to  return  into  the  employment  of  the 
United  States,  and  their  boat-fishing  fell  off.  That 
has  been  stated  to  your  Honors  before,  but  it  cannot 
be  too  constantly  borne  in  mind. 

But  we  went  on  as  well  as  we  could  in  that  state  of 
things,  until  Great  Britain,  desirous  of  relieving  her 
self  from  that  burden,  and  the  United  States  desiring 
to  be  released  from  those  perils,  and  having  also 
another  great  question  unsettled,  that  is,  the  conse 
quences  of  the  captures  by  the  Alabama,  the  two 
countries  met  together  with  Commissioners,  at 
Washington,  in  1871,  and  then  made  a  great  treaty 
of  peace.  I  call  it  a  "treaty  of  peace,"  because  it  was 
a  treaty  which  precluded  war,  not  restored  peace 
after  war,  but  prevented  war,  upon  terms  most  hon 
orable  to  both  parties;  and  as  one  portion  of  that 
treaty  —  one  that,  though  not  the  most  important 
by  any  means,  nor  filling  so  large  a  place  in  the  public 
eye  as  did  the  Congress  at  Geneva,  yet  fills  an  im 
portant  place  in  history,  and  in  its  consequences  to 
the  people  of  both  countries  —  was  the  determination 
of  this  vexed  and  perpetual  question  of  the  rights  of 
fishing  in  the  bays  of  the  north-western  Atlantic;  and 
by  that  treaty,  we  went  back  again  to  the  old  condi 
tion  in  which  we  had  been  from  1620  down,  with  the 
exception  of  the  period  between  1818  and  1854,  and 
the  period  between  1866  and  1871.  That  restored 
both  sides  to  the  only  condition  in  which  there  can 
be  peace  and  security;  peace  of  mind,  at  least,  free 
dom  from  apprehension,  between  the  two  govern 
ments.  And  when  those  terms  were  made,  which  were 


HALIFAX  FISHERY  COMMISSION  377 

terms  of  peace,  of  good-will  to  men,  of  security  for  the 
future,  and  of  permanent  basis  always,  and  we  agreed 
to  free  trade  mutually  in  fish  and  fish-oil,  and  free 
rights  of  fishing,  as  theretofore  almost  always  held, 
Great  Britain  said,  "Very  well;  but  there  should  be 
paid  to  us  a  money  compensation."  The  United 
States  asked  none ;  perhaps  it  did  not  think  it  a  fitting 
thing  to  do.  Great  Britain  said,  "This  is  all  very 
well;  but  there  should  be  a  compensation  in  money, 
because  we  are  informed  by  the  Provinces"  - 1  do 
not  believe  that  Great  Britain  cared  anything  about 
it  herself  --  "that  it  is  of  more  pecuniary  value  to 
the  Americans  to  have  their  right  of  fishing  extended 
over  that  region  from  which  they  have  been  lately 
excluded,  than  it  is  to  us  to  have  secured  to  us  free 
right  to  sell  all  over  the  United  States  the  catchings 
of  Her  Majesty's  subjects,  free  from  any  duty  that 
the  Americans  might  possibly  put  upon  us." 
"Very  well,"  said  the  United  States;  "if  that  is  your 
view  of  it,  if  you  really  think  you  ought  to  have  a 
money  compensation,  we  will  agree  to  submit  it  to 
a  tribunal."  And  to  this  tribunal  it  is  submitted, 
First,  under  Article  XVIII  of  the  Treaty  of  1871: 
what  is  the  money  value  of  what  the  United  States 
obtains  under  that  article?  Next,  what  is  the  money 
value  of  what  Great  Britain  obtains  under  Articles 
XXI  and  XIX?  Second,  Is  what  the  United  States 
obtains  under  Article  XVIII  of  more  pecuniary  value 
than  what  Great  Britain  obtains  under  her  two  arti 
cles?  Because  I  put  out  of  sight  our  right  to  send  to 
this  market,  and  the  right  of  the  people  of  the  Pro 
vinces  to  fish  off  our  coasts,  as  I  do  not  think 
either  of  them  to  be  of  much  consequence.  If  you 
shall  be  of  opinion,  that  there  is  no  difference  of 


378  RICHARD  HENRY  DANA,  JR. 

value,  —  and  of  course  that  means  no  substantial 
difference  in  value,  or  that  the  advantage  is  with 
Great  Britain, -- then  your  deliberations  are  at  an 
end;  but  if  you  shall  think  there  is  a  substantial 
difference  in  value  in  favor  of  the  United  States,  then 
your  deliberations  must  go  further,  and  you  must 
decide  what  is  that  value,  in  money. 

I  hope,  if  your  Honors  are  not  already  persuaded, 
that  you  will  be  before  the  close  of  the  argument  on 
the  part  of  the  United  States,  and  may  not  be  driven 
from  that  persuasion  by  anything  that  may  occur 
on  the  other  side,  that  the  United  States  were  quite 
honest  when  they  made  the  statement,  in  1871,  that 
in  asking  for  the  abandonment  of  the  restrictive  sys 
tem  in  regard  to  the  fisheries,  they  did  not  do  it  so 
much  because  of  the  commercial  or  intrinsic  value 
of  the  fishing  within  the  three-mile  line,  as  for  the 
purpose  of  removing  a  cause  of  irritation;  and  I  hope 
that  the  members  of  this  tribunal  have  already  felt 
that  Great  Britain,  in  maintaining  that  exclusive 
system,  was  doing  injustice  to  herself,  causing  herself 
expense,  loss,  and  peril;  that  she  was  causing  irrita 
tion  and  danger  to  the  United  States;  that  it  was 
maintained  from  a  mistaken  notion,  though  a  natural 
one,  among  the  Provinces  themselves,  and  to  please 
the  people  of  the  Dominion  and  of  Newfoundland; 
and  that  the  great  value  of  the  removal  of  the  restric 
tion  is,  that  it  restores  peace,  amity,  good-will;  that 
it  extends  the  fishing,  so  that  no  further  question 
shall  arise  in  courts  or  out  of  courts,  on  quarter-decks 
or  elsewhere,  whatever  may  be  the  pecuniary  value 
of  the  mere  right  of  fishing  by  itself;  and  that  it  would 
be  far  better  if  the  Treaty  of  Washington  had  ended 
with  the  signing  of  the  stipulations,  except  so  far  as 


HALIFAX  FISHERY  COMMISSION  379 

the  Geneva  Arbitration  was  concerned,  and  this 
question  had  not  been  made  a  matter  of  pecuniary 
controversy;  that  either  a  sum  of  money  had  been 
accepted  at  the -time  for  a  perpetual  right,  as  was 
offered,  or  that  some  arrangement  had  been  made 
between  the  two  countries  by  which  there  should 
be  the  mutual  right  of  free  trade  in  timber,  in 
coal,  and  in  fish,  or  something  permanent  in  its  char 
acter. 

But  that  is  a  bygone,  and  we  are  to  meet  the  ques 
tion  as  it  comes  now  directly  before  us.  Now,  first, 
with  your  Honors'  leave,  I  will  take  up  the  con 
sideration  of  the  money  value  of  the  removal  of  this 
geographical  restriction,  for  that  is  what  it  is.  The 
ancient  freedom  is  restored ;  the  recent  and  occasional 
restriction  as  to  three  miles  is  removed,  and  the 
colonists  say  that  that  has  been  of  pecuniary  value 
to  us.  Whether  it  is  a  loss  to  them  or  not  is  utterly 
immaterial,  in  this  consideration.  They  cannot  ask 
you  to  give  them  damages  for  any  loss  to  them.  It 
is  only  the  value  to  us.  It  is  like  a  person  buying  an 
article  in  a  shop,  and  a  third  person  appointed  to 
determine  what  is  the  value  of  that  article  to  the 
purchaser.  It  is  quite  immaterial  how  great  a  mis 
take  the  man  may  have  made  in  selling  it  to  him,  or 
what  damage  the  want  of  it  may  have  brought  upon 
his  family  or  himself.  If  I  have  bought  an  umbrella 
across  the  counter,  and  we  leave  it  to  a  third  man  to 
determine  the  value  of  the  umbrella  to  me,  it  is 
totally  immaterial  whether  the  man  has  sold  the  only 
one  he  had,  and  his  family  have  suffered  for  the  want 
of  it.  That  is  a  homely  illustration,  but  it  is  perfectly 
apt.  The  question  is,  What  is  the  value  to  the  citi 
zens  of  the  United  States,  in  money,  of  the  removal 


380  RICHARD  HENRY  DANA,  JR. 

of  this  geographic  restriction?  Not  what  damage  this 
may  have  been  to  the  Provinces,  by  reason  of  the 
Treaty  which  Her  Majesty's  Government  saw  fit  to 
make  with  us.  What,  then,  is  the  money  value  of  the 
removal  of  the  restriction? 

I  will  now  take  up  for  a  moment  the  question  of 
the  cod-fisheries.  In  the  first  place,  as  to  the  cod- 
fisLery,  it  is  a  deep-sea  or  off-shore  fishery,  not  a 
fishery  within  three  miles.  I  do  not  mean  to  say  that 
stray  cod  may  not  be  caught  occasionally  within  that 
limit;  but  as  a  business,  it  is  a  deep-sea  business. 
With  your  Honors'  permission,  I  will  read  some  of 
the  evidence  on  that  point. 

These  are  only  passages  selected  from  a  large  mass 
of  testimony,  but  they  were  selected  because  the  per 
sons  who  testified  in  that  way  were  either  called  by 
the  British  side,  or  were  persons  of  so  much  experi 
ence  that  they  are  fair  specimens  of  our  view  of  the 
subject. 

Now,  cod  fishery  is  the  great  trade  and  staple  of 
the  United  States,  and  is  growing  more  and  more  so. 
The  small  cod  that  were  once  thrown  overboard  are 
now  kept.  The  oil  is  used  a  great  deal,  codfish  oil; 
and  there  are  manufacturing  establishments  in 
Maine,  Connecticut,  and  Massachusetts,  which, 
we  have  been  told  by  the  witnesses,  work  up  a  great 
deal  of  this  material  that  used  to  be  thrown  over 
board;  they  draw  oil  from  it,  and  the  rest  is  used  for 
fertilizing  the  land,  and  that  is  a  gradually  increasing 
business.  One  of  the  witnesses,  I  recollect,  from 
Gloucester,  told  us  how  greatly  the  trade  in  codfish 
had  improved,  so  that  now,  instead  of  sending  it  out 
as  whole  fish,  it  is  cut  in  strips,  rolled  together,  and 


HALIFAX  FISHERY  COMMISSION  381 

put  into  cans,  and  sold  in  small  or  large  quantities 
to  suit  purchasers,  and  in  that  very  easy  manner 
sent  all  over  the  United  States. 

The  cod-fishery  is  also  one  as  to  which  there  is  no 
fear  of  diminution,  —  certainly  none  of  its  extermi 
nation.  Professor  Baird  told  us,  on  page  456  of  the 
American  evidence,  that  a  single  cod  produces  from 
three  to  seven  million  eggs,  each  one  capable  of 
forming  another  living  animal  in  the  place  of  its 
mother.  He  said  that  owing  to  the  winds  and  storms 
to  which  they  were  exposed,  and  to  their  being 
devoured  by  other  fish  which  sought  for  them,  the 
best  information  was  that  about  a  hundred  thousand 
of  these  eggs  prosper  so  as  to  turn  into  living  fish, 
capable  of  taking  care  of  themselves,  the  undefended 
and  unrestricted  navigators  of  the  ocean.  Although 
that  is  not  a  large  percentage  of  the  amount  of  ova, 
yet  an  annual  increase  of  a  hundred  thousand  for 
every  one  shows  that  there  is  no  danger  of  the  dimi 
nution,  certainly  none  of  the  extermination,  of  that 
class  of  fish.  It  is  enormous  in  quantity,  something 
which  the  whole  world  combining  to  exterminate 
could  hardly  make  any  impression  upon;  and  when 
the  argument  is  made  here  that  we  ought  to  pay  more 
for  the  right  to  fish  because  we  are  in  danger  of  exter 
minating  what  codfish  we  have,  --if  that  argument 
is  made,  —  it  amounts  to  nothing.  But  if  the  further 
argument  is  made,  that  we  have  no  cod-fishery  to 
depend  upon,  then  we  have  the  statistics,  and  we  have 
information  from  witnesses  from  all  parts,  that  the 
cod-fishery  shows  no  signs  of  diminution,  and  that 
it  is  as  large  and  extensive  and  as  prosperous  as  ever. 
Gloucester  has  gone  more  into  the  business  than  it 
ever  has  before;  and  I  do  not  recollect  that  there  is 


382  RICHARD  HENRY  DANA,  JR. 

any  evidence  of  the  least  value  showing  that  that 
fishery  is  likely  to  fall  off  materially  as  a  commercial 
product  in  our  hands.  There  is  a  single  British  con 
currence  out  of  several  others,  I  think,  in  this  state 
ment,  which  I  will  read.  [Statement  is  to  the  effect  that 
the  cod-fishery  is  not  precarious  and  the  fishermen 
make  a  good  living  out  of  it.]  I  read  that,  because  it 
is  the  testimony  of  an  intelligent  British  witness,  who 
represents  one  of  those  great  Jersey  firms  that  deal  in 
codfish  on  the  west  coast  of  the  gulf. 

The  bait  of  the  codfish  need  not  be  caught  within  the 
three-mile  line.  That,  I  think,  we  have  pretty  well 
established.  We  may  buy  it  when  we  wish  it.  Among 
the  curious  grounds  set  forth  to  swell  the  English  claim 
against  us,  to  make  it  meet,  if  possible,  the  obvious 
money  claim  we  had  against  Great  Britain,  if  it  was 
seen  fit  to  enforce  it,  —  we  now  put  it  in  only  as  a  set- 
off, —  appears  the  testimony  that  our  fishing- vessels, 
going  into  Newfoundland,  employed  the  men  there 
to  fish,  and  that  it  had  a  very  deleterious  moral  effect 
upon  the  habits  of  the  Newfoundland  fishermen;  that 
they  had  been,  up  to  the  time  the  Americans  appeared 
there  to  buy  their  bait,  an  industrious  people,  in  a  cer 
tain  sense ;  they  had  fished  a  certain  part  of  the  year 
under  contracts,  which  it  seems  they  could  not  get  rid 
of,  with  a  class  of  owners  who  held  them  in  a  kind  of 
blissful  bondage;  but  that  when  the  Americans  ap 
peared,  they  led  them  to  break  these  contracts;  some 
times  tempted  them  to  fall  off  from  their  agreements, 
and  put  money  into  their  pockets ;  they  paid  them  for 
work;  they  gave  them  labor  at  a  time  when  they  ought 
to  have  been  lying  idle,  —  when  it  was  better  for  them 
to  lie  idle !  Oh,  it  steadied  them,  improved  them,  raised 
their  moral  tone,  to  be  idle,  and  tended  to  preserve 


HALIFAX  FISHERY  COMMISSION  383 

those  desirable  relations  that  existed  between  them 
and  the  merchants  of  St.  John's !  A  great  deal  was 
said  about  that;  but  at  last  there  came  upon  the 
stand  a  witness,  whose  name,  if  I  recollect,  was  Mac- 
donnell  (page  313  of  the  British  testimony),  a  British 
witness.  I  did  not  know  that  he  would  not  be  fully 
as  well  filled  with  these  feudal  opinions  as  the  others 
had  been.  He  said  the  people  at  Fortune  Bay  were 
well  off. 

Nothing  has  been  attempted  since  to  contradict 
that  statement.  It  is  in  accord  with  the  nature  of 
things.  There  is  always  danger  in  putting  money 
in  any  man's  hands,  and  there  is  also  danger  in  pov 
erty.  The  wise  man  saw  that  poverty  had  its  perils  as 
well  as  wealth;  and  nothing  can  be  worse  for  a  people 
in  the  long  run  than  the  condition  to  which  the  fisher 
men  of  Newfoundland  had  been  reduced.  And  now, 
believing  fully  in  this  testimony  of  Mr.  Macdonnell, 
I  cannot  doubt  that  our  coming  among  them  and 
buying  their  bait,  stimulating  them  to  work,  and 
paying  them  money,  has  led  to  their  hoarding  money; 
has  led  to  their  abstinence  from  those  habits  which 
so  beset  the  half -employed  and  the  idle  man,  who  has 
a  large  season  of  the  year  with  nothing  to  do,  but  has 
a  reasonable  expectation,  that,  what  with  his  labor 
and  what  with  his  credit,  somebody  or  other  who  owns 
the  boats  will  support  him  and  his  family. 

I  should  like,  also,  to  call  your  attention,  on  this 
question  of  getting  bait,  which  is  of  some  importance, 
to  the  testimony  of  Prof.  Baird,  which,  I  suppose, 
none  of  you  has  forgotten,  which  shows  that  we 
need  not  catch  our  bait  for  the  cod  in  British  waters. 
[Then  follows  a  long  extract  from  Prof.  Baird's  testi 
mony  supporting  Mr.  Dana's  statement.] 


384  RICHARD  HENRY  DANA,  JR. 

That  is,  of  course,  not  very  material,  because  it 
only  goes  to  the  point  that  we  are  not  dependent 
upon  catching  bait  within  three  miles  of  the  British 
coast,  anywhere.  We  have  ways  of  using  salt  bait, 
and  the  use  of  all  these  scientific  methods  of  pre 
serving  bait,  which  will,  no  doubt,  be  resorted  to 
and  experimented  upon,  and  we  may  be  quite  certain 
that  they  will,  in  skilful  hands,  succeed.  Nothing 
further  upon  that  point  need  be  considered  by  your 
Honors. 

I  now  call  your  attention  to  MACKEREL.  The  mack 
erel,  may  it  please  your  Honors,  is  a  deep-sea  fish. 
He  does  not  lurk  about  anybody's  premises.  He  does 
not  live  close  in  to  the  shore.  He  is  a  fish  to  whose 
existence  and  to  whose  movements  a  mysterious  im 
portance  is  attached.  A  certain  season  of  the  year 
he  is  not  to  be  seen;  and  at  other  times,  mackerel 
are  so  thick  upon  the  waters,  that,  as  one  of  the  most 
moderate  of  the  British  witnesses  said,  you  might 
walk  upon  them  with  snow-shoes,  I  believe  it  was 
from  East  Point  to  North  Cape !  I  do  not  know  that 
I  have  got  the  geography  quite  right,  but  it  is  some 
thing  like  that.  However,  I  do  not  doubt  that  the 
number  is  extraordinary  at  times,  and  at  other  times 
they  are  not  to  be  seen.  We  do  not  know  much  about 
them.  We  know  they  disappear  from  the  waters  of 
our  whole  coast,  from  Labrador  down  to  the  extreme 
southerly  coast,  and  then  at  the  early  opening  of  the 
spring  they  reappear  in  great  numbers,  armies  of 
them.  They  can  no  more  be  counted  than  the  sand 
of  the  sea,  and  are  as  little  likely  to  be  diminished 
in  number.  They  come  from  the  deep  sea,  or  deep 
mud,  and  they  reappear  in  these  vast  masses,  and  for 
a  few  months  they  spread  themselves  all  over  these 


HALIFAX  FISHERY  COMMISSION  385 

seas.  A  few  of  them  are  caught,  but  very  few  in  pro 
portion  to  the  whole  number,  and  then  they  recede 
again.  Their  power  of  multiplication  is  very  great. 
I  forget  at  this  moment  what  Prof.  Baird  told  us,  but 
it  is  very  great.  They  are  specially  to  be  found  upon 
the  banks  of  the  Gulf  of  St.  Lawrence,  the  Bradelle  or 
Bradley  Banks,  the  Orphan,  Miscou,  Green,  Fisher 
man's  Bank,  and  off  the  coast  of  Prince  Edward 
Island,  and  especially,  more  than  anywhere  else, 
about  the  Magdalen  Islands;  and  in  the  autumn, 
as  they  are  passing  down  to  their  unknown  homes, 
they  are  to  be  found  in  great  numbers  directly  off  the 
western  coast  of  Cape  Breton,  near  the  highlands 
opposite  Margaree  island,  and  near  Port  Hood;  but  in 
the  main,  they  are  to  be  found  all  over  the  deep  sea 
of  the  Gulf  of  St.  Lawrence.  The  Gulf  of  St.  Law 
rence  is  full  of  ledges,  banks,  and  eddies  formed  by 
meeting  tides,  which  Prof.  Hind  described  to  us,  and 
there  the  mackerel  are  especially  gathered  together. 
The  map  drawn  on  the  British  side,  in  the  British 
interest,  shows  this  enormous  field  for  the  mackerel 
fisheries;  and  though  very  few  comparatively  of  the 
banks  and  ledges  are  put  down,  yet  in  looking  over 
this  map,  it  seems  as  if  it  was  a  sort  of  great  directory, 
showing  the  abodes  of  the  mackerel,  and  also  the 
courses  that  the  mackerel  take  in  passing  from  one 
part  of  this  great  sea  to  another.  There  is  hardly  a 
place  where  mackerel  fishing  grounds  are  not  marked 
out  here,  and  they  are  nearly  all  marked  out  at  a 
considerable  distance  from  the  shore,  all  around  the 
Magdalen  Islands,  for  many  miles,  and  at  a  distance 
from  Prince  Edward  Island,  and  on  the  various  banks, 
ledges,  and  shoals  that  are  to  be  found;  and  it  is 
there,  as  I  shall  have  the  honor  to  point  out  to  the 


386  RICHARD  HENRY  DANA,  JR. 

Court  more  particularly  hereafter,  that  they  have 
always  been  caught  in  the  largest  quantities,  and  the 
best  of  them,  by  American  fishermen. 

There  are  one  or  two  experienced  witnesses,  from 
Gloucester,  who  have  dealt  with  the  subject  carefully, 
for  their  own  interests,  not  testifying  for  any  particu 
lar  purpose,  but  having  kept  their  books  and  accounts, 
jand  dealt  with  the  mackerel  in  their  own  business, 
whose  words  I  would  like  to  recall  to  the  attention  of 
the  Court  for  a  few  moments. 

The  Commissioners  will  recollect  the  testimony 
of  Mr.  Myrick,  an  American  merchant,  who  had 
established  himself  on  Prince  Edward  Island.  The 
inshore  fishery,  he  said,  is  not  suited  to  American 
vessels.  Our  vessels  are  large;  they  are  built  at  a 
distance;  they  are  manned  by  sixteen  or  seventeen 
men;  they  cost  a  great  deal;  they  require  large  catches, 
and  dealing  with  fish  in  large  quantities,  they  deal  at 
wholesale  altogether,  and  not  at  retail.  Retailing 
would  ruin  them.  Anything  short  of  large  catches, 
large  amounts,  would  be  their  end,  and  compel  all 
the  merchants  to  give  up  the  business,  or  to  take  to 
boat-fishing,  which,  of  course,  Gloucester,  or  Massa 
chusetts,  or  New  England,  or  any  part  of  the  United 
States,  could  not  undertake  to  carry  on  here.  It  has 
been  stated  to  the  tribunal,  by  experienced  men,  as 
you  cannot  but  remember,  that  our  fishermen  object 
to  going  very  near  shore  in  the  Gulf  of  St.  Lawrence. 
There  are  perils  of  weather  connected  with  the  coast 
which  cannot  be  set  aside  by  ridicule.  Gloucester  is 
a  town  full  of  widows  and  orphans,  whose  husbands 
and  parents  have  laid  their  bones  upon  this  coast,  and 
upon  its  rocks  and  reefs,  trusting  too  much  to  the 
appearance  of  fine  weather,  as  we  all  did  last  night, 


HALIFAX  FISHERY  COMMISSION  387 

waking  up  this  morning  in  a  tempest.  Gloucester 
has  tried  to  provide  for  these  bereft  people  by  every 
fisherman  voluntarily  paying  a  small  percentage  of 
his  earnings  to  constitute  a  widows'  and  orphans' 
fund.  Even  the  tempestuous  Magdalen  Islands  are 
safer  for  vessels  than  are  the  inshore  coasts  of  those 
islands,  where  we  are  now  permitted  to  fish;  their 
harbors  are  poor,  their  entrances  are  shallowed  by 
sand-bars,  which  are  shifting,  which  shift  with  every 
very  high  wind,  and  sometimes  with  the  season. 
They  are  well  enough  after  you  get  inside  of  them, 
but  they  are  dangerous  to  enter,  to  persons  inexperi 
enced,  —  dangerous  to  any  by  night;  and  if  a  vessel 
is  caught  near  the  shore  by  a  wind  blowing  inshore, 
against  which  she  cannot  beat  with  sails,  for  none  of 
them  carry  steam,  then  she  is  in  immediate  peril. 
They  therefore  give  a  wide  berth  to  the  inshore  fish 
eries,  in  the  main.  They  resort  to  them  only  occasion 
ally.  They  are  not  useful  for  fishing  with  our  seines. 
We  find  that  the  purse-seines  are  too  deep ;  that  they 
are  cut  by  the  ground,  which  is  rocky;  that  it  is 
impossible  to  shorten  them  without  scaring  the  mack 
erel,  which  must  be  taken  by  seines  run  out  a  great 
distance,  for  they  are  very  quick  of  sight,  and  very 
suspicious  of  man;  and  they  soon  find  their  way  out 
of  the  seines,  unless  they  are  laid  a  considerable  dis 
tance  off. 

We  need  not  catch  our  mackerel  bait,  any  more 
than  our  cod  bait,  within  the  three-mile  limit.  On 
the  contrary,  the  best  mackerel  bait  in  the  world  is 
the  menhaden,  which  we  bring  from  New  England. 
All  admit  that.  The  British  witnesses  say  they 
would  use  it,  were  it  not  that  it  is  too  costly.  They 
have  to  buy  it  from  American  vessels;  and  they  be- 


388  RICHARD  HENRY  DANA,  JR. 

take  themselves  to  an  inferior  kind  of  bait  when  they 
cannot  afford  to  buy  the  best  bait  from  us.  And 
another  result  is  that  the  Americans  have  shown  for 
many  years  that  what  are  called  the  shore  mackerel 
-  that  is,  those  that  are  caught  off  the  coast  of  Mas 
sachusetts  and  several  other  of  the  New  England 
States  —  are  really  better  than  the  Bay  mackerel. 
The  evidence  of  that  is  the  market  prices  they  bring. 
It  is  not  a  matter  of  opinion.  We  have  not  called  as 
witnesses  persons  who  have  only  tasted  them,  and 
might  have  prejudices  or  peculiar  tastes,  but  we  have 
shown  the  market  value. 

It  is  also  true,  a  matter  of  testimony  and  figures, 
that  the  American  catch,  the  catch  upon  the  American 
shore,  is  very  large,  and  has  increased,  and  is  attract 
ing  more  and  more  the  attention  of  our  people  en 
gaged  in  fishing,  and  it  is  only  this  year  that  the  shore 
fishing  proved  to  be  unprofitable,  and  the  confiding 
men  who  were  led  to  send  their  vessels  to  a  consider 
able  extent,  though  not  very  great,  into  the  Gulf,  by 
reason  of  the  British  advertisements  scattered  about 
Gloucester,  have  come  away  still  more  disappointed 
than  they  had  been  by  the  shore  fishing,  because  they 
had  employed  more  time  and  more  capital  than  their 
catch  compensated  them  for.  There  are  some  statis 
tics  which  I  will  read,  taken  from  a  prominent  and 
trustworthy  man,  as  to  the  American  catch.  David 
W.  Low,  on  page  358  of  the  American  evidence, 
states  the  figures  as  follows.  [Statistics  of  Mr.  Low, 
supporting  the  above  statement,  omitted.] 

The  statistics  of  John  H.  Pew  &  Sons,  put  in  by 
Charles  H.  Pew,  p.  496,  for  the  last  seven  years,  from 
1870  to  1876,  inclusive,  show  that  the  total,  for  that 
time,  of  Bay  mackerel  that  their  own  vessels  caught, 


HALIFAX  FISHERY  COMMISSION  389 

amounted  to  $77,995.22,  and  the  shore  mackerel  for 
the  same  period  was  $271,333.54.  Your  Honors  will 
recollect  the  statistics  put  in,  which  it  is  not  necessary 
for  us  to  transfer  to  our  briefs,  showing  the  exact 
state  of  the  market  on  the  subject  of  the  proportion 
of  American  fish  caught  on  the  shores,  and  the  pro 
portion  caught  in  the  bay. 

We  have  introduced  a  large  number  of  witnesses 
from  Gloucester,  and  I  think  I  take  nothing  to  myself 
in  saying  that  the  greater  part  of  them,  those  who 
profess  to  be  engaged  in  the  trade  or  business  at  all, 
were  men  of  eminent  respectability,  and  commended 
themselves  to  the  respect  of  the  tribunal  before  which 
they  testified.  You  were  struck,  no  doubt,  with  the 
carefulness  of  their  book-keeping,  and  the  philo 
sophical  system  which  they  devised,  by  means  of 
which  each  man  could  ascertain  whether  he  was  mak 
ing  or  losing  in  different  branches  of  his  business;  and 
as  the  skipper  was  often  part  owner,  and  usually 
many  dealers  managed  for  other  persons,  it  became 
their  duty  to  ascertain  what  was  the  gain  or  loss  of 
each  branch  of  their  business.  They  brought  for 
ward  and  laid  before  you  their  statistics.  They  sur 
prised  a  good  many,  and  I  know  that  the  counsel  on 
the  other  side  manifested  their  surprise  with  some 
directness;  but,  may  it  please  the  Court,  when  the 
matter  came  to  be  examined  into,  it  assumed  a  differ 
ent  aspect.  We  made  the  counsel  on  the  other  side 
this  offer.  We  said  to  them,  "There  is  time  enough, 
there  are  weeks,  if  you  wish  it,  before  you  are  obliged 
to  put  in  your  rebuttal;  we  will  give  you  all  the  time 
you  wish;  send  anybody  to  Gloucester  you  please, 
to  examine  the  books  of  any  merchants  in  Gloucester 
engaged  in  the  fishing  business,  and  ascertain  for 


390  RICHARD  HENRY  DANA,  JR. 

yourselves  the  state  of  the  bay  and  shore  fishing  as 
it  appears  there."  You  say  that  bay  fishing  is  as 
profitable  as  the  shore  fishing;  that  it  has  made  a 
great  and  wealthy  city  of  Gloucester,  and  you  assume 
that  it  is  owing  to  their  having  had,  for  the  greater 
part  of  the  time,  a  right  to  fish  inshore.  It  would 
seem  to  follow  from  this  reasoning,  that  whenever 
we  lost  the  right  to  fish  inshore,  Gloucester  must  have 
receded  in  its  importance,  and  come  up  again  with 
the  renewal  of  the  privilege  of  inshore  fishing.  No 
thing  of  that  sort  appears,  in  the  slightest  degree. 

"But,"  they  say,  "the  Bay  fishing  must  be  of  great 
importance,  because  of  the  prosperity  of  Gloucester." 
Now,  the  people  of  Gloucester  have  no  disposition  to 
deny  their  prosperity,  but  it  is  of  a  different  kind 
from  what  has  been  represented.  Gloucester  is  a 
place  altogether  sui  generis.  I  never  saw  a  place  like 
it.  I  think  very  few  of  your  Honors  failed  to  form  an 
opinion  that  it  was  a  place  well  deserving  of  study 
and  consideration.  There  is  not  a  rich  idle  man, 
apparently,  in  the  town  of  Gloucester.  The  business 
of  Gloucester  cannot  be  carried  on,  as  mercantile 
business  often  is,  by  men  who  invest  their  capital  in 
the  business,  and  leave  it  in  the  hands  of  other  people 
to  manage.  It  cannot  be  carried  on  as  much  of  the 
mercantile  business  of  the  world  is  carried  on,  in  a 
leisurely  way,  by  those  who  have  arrived  at  some 
thing  like  wealth,  who  visit  their  counting-rooms  at 
ten  o'clock  in  the  morning,  and  stay  a  few  hours,  then 
go  away  to  the  club,  return  to  their  counting-rooms 
for  a  short  time,  and  then  drive  out  in  the  enticing 
drives  in  the  vicinity,  and  their  day's  work  is  over. 
It  cannot  be  carried  on  as  my  friends  in  New  Bedford 
used  to  carry  on  the  whale  fishery,  where  the  gentle- 


HALIFAX  FISHERY  COMMISSION  391 

men  were  at  their  counting-rooms  a  few  months  in 
the  year,  and  when  the  off  season  came,  they  were  at 
Washington,  Saratoga,  or  wherever  else  they  saw 
fit  to  go.  And  yet  they  were  prosperous.  No;  the 
Gloucester  tradesmen  are  hard-working  men,  and  they 
gain  their  wealth  and  prosperity  on  the  terms  of  being 
hard-working  men.  The  Gloucester  merchants,  if 
you  see  fit  to  call  them  so,  --  they  are  not  particular 
about  their  title,  but  are  content  to  be  "fish-dealers," 
-  are  men  who  go  to  their  counting-rooms  early  and 
stay  late.  If  they  go  up  to  Boston  on  business,  they 
take  a  very  early  train,  breakfast  before  daylight, 
and  return  in  season  to  do  a  day's  work,  though  Bos 
ton  is  thirty  and  more  miles  distant;  and  when  their 
vessels  come  in,  they  are  down  upon  the  wharves, 
they  stand  by  the  large  barges,  and  they  cull  the 
mackerel  with  their  own  hands ;  they  count  them  out 
with  their  own  hands;  they  turn  them  with  their  own 
hands  into  the  barrels,  and  cooper  them,  and  scuttle 
the  barrels,  and  put  in  the  brine  and  pickle  the  fish, 
and  roll  them  into  the  proper  places;  and  when  they 
have  a  moment's  leisure,  they  will  go  to  their  count 
ing-rooms  and  carry  on  their  correspondence,  by  tele 
graph  and  otherwise,  with  all  parts  of  the  United 
States,  and  learn  the  value  of  these  mackerel.  They 
are  ready  to  sell  them  to  the  buyers,  who  are  another 
class  of  persons,  or  they  are  ready  to  keep  and  sell 
them  in  the  larger  market  of  Boston. 

By  their  patient  industry,  by  their  simple  hard 
day's  works,  they  have  made  Gloucester  an  important 
place;  but  they  have  not  added  much  to  the  mackerel 
fishery  of  the  United  States.  Gloucester  has  grown 
at  the  expense  of  every  other  fishing  town  in  New 
England.  We  have  laid  before  your  Honors,  through 


392  RICHARD  HENRY  DANA,  JR. 

Mr.  Low,  I  think  it  was,  or  through  Mr.  Babson,  the 
statistics  of  the  entire  falling  off  of  all  the  fishing 
towns  in  New  England.  Where  are  Plymouth  and 
Barnstable,  where  Marblehead,  which  was  known  the 
world  over  as  a  fishing  town?  There  are  no  more 
fishing  vessels  there.  The  people  have  all  gone  into 
the  business  of  making  shoes  and  other  domestic 
manufactures.  So  with  Beverly,  so  with  Manchester, 
so  with  Newburyport,  and  so  with  the  entire  State 
of  Maine,  with  the  exception  of  a  very  few  vessels 
on  the  coast.  Two  or  three  of  the  last  witnesses  gave 
us  a  most  melancholy  account  of  the  entire  falling 
off  of  fishing  in  Castine,  Bucksport,  and  all  up  and 
down  Penobscot  Bay  and  River,  so  that  there  is 
hardly  any  fishing  left.  When  they  were  fishing  towns, 
people  employed  their  industry  in  it.  Their  harbors 
were  enlivened  by  the  coming  and  going  of  fishing 
schooners,  and  now  there  is  an  occasional  weekly 
steamer  or  an  occasional  vessel  there  owned,  but  do 
ing  all  its  business  in  Boston  and  New  York.  But  the 
fishing  business  of  all  the  towns  of  New  England, 
except  the  cod  fishery  of  Provincetown  and  of  the 
towns  near,  has  concentrated  in  Gloucester.  It  seems 
to  be  a  law  that  certain  kinds  of  business,  though 
carried  on  sparsely  at  periods,  must  be  eventually 
concentrated.  When  they  are  concentrated,  they 
cannot  be  profitably  carried  on  anywhere  else.  The 
result  is,  that  the  mackerel  fishery  and  cod  fishery, 
with  the  exception  of  the  remote  points  of  Cape  Cod, 
have  concentrated  in  Gloucester.  There  is  the  cap 
ital;  there  is  the  skill;  there  are  the  marine  railways; 
there  is  that  fishing  insurance  company,  which  they 
have  devised  from  their  own  skill  and  experience,  by 
which  they  insure  themselves  cheaper  than  any  peo- 


HALIFAX  FISHERY  COMMISSION  393 

pie  in  the  world  ever  did  insure  themselves  against 
marine  risks;  so  much  so,  that  merchants  of  Glouces 
ter  have  told  us  that  if  they  had  to  pay  the  rates  that 
are  paid  in  stock  companies,  the  fishing  business  could 
not  be  carried  on  by  merchants  who  own  their  ships; 
the  difference  would  be  enough  to  turn  the  scale. 
Now  it  appears  to  be  the  fact,  —  I  will  not  trouble 
your  Honors  by  going  over  the  testimony  to  which 
every  Gloucester  man  swore,  —  it  turns  out  to  be 
the  fact,  that  the  prosperity  of  Gloucester,  while  it 
has  additional  resources  in  its  granite,  and  as  a  sea 
bathing  place,  has  been  owing  mostly  to  the  prudence 
and  sagacity,  the  frugality  and  laboriousness,  of  the 
men  brought  up  as  fishermen,  who  turn  themselves 
into  fish-dealers  in  middle  life,  and  carry  their  experi 
ence  into  it;  and  it  is  only  on  those  terms  that  Glouces 
ter  has  become  what  it  is.  An  attempt  was  made  at 
Salem,  under  the  best  auspices,  to  carry  on  this 
business,  with  the  best  Gloucester  fishermen  and 
most  experienced  men  concerned  in  it,  by  a  joint- 
stock  company ;  but  in  the  matter  of  deep-sea  fishing, 
"the  Everlasting"  seems  to  have  "fixed  his  canon" 
against  its  prosperity,  except  upon  the  terms  of 
frugality  and  laboriousness.  It  never  has  succeeded 
otherwise,  and  scarce  on  those  terms,  except  it  be 
with  the  aid  of  bounties  from  the  governments. 

Now,  we  say  that  the  whole  Bay  fishing  for  mack 
erel  is  made  prosperous  simply  on  those  terms;  that 
it  is  no  treaty-gift  that  has  created  it,  but  it  is  the 
skill  and  industry  of  the  fishermen,  the  capital  in 
vested  by  the  owners,  and  the  patient,  constant  labor 
and  skill  of  the  owners  in  dealing  with  their  fish,  after 
they  are  thrown  upon  their  hands  on  the  wharf  and 
they  have  paid  their  fishermen,  that  has  given  to  it 


394  RICHARD  HENRY  DANA,  JR. 

any  value  in  the  market.  I  do  not  think  it  is  worth 
while  to  speculate  upon  the  question  whether  fish  in 
the  water  have  any  money  value.  I  can  conceive  that 
fish  in  a  pond  and  that  fish  that  cling  to  the  shore, 
that  have  a  habitat,  a  domicile,  like  shell-fish,  have 
an  actual  value.  They  are  sure  to  be  found.  It  is 
nothing  more  than  the  application  of  mechanical 
means  that  brings  them  into  your  hands.  But  cer 
tainly  it  is  true,  that  the  value  of  the  free-swimming 
fish  of  the  ocean,  pursued  by  the  deep-sea  fishermen, 
with  line  or  with  net,  must  be  rather  metaphysical 
than  actual.  To  pursue  them  requires  an  investment 
of  capital;  it  requires  risk  and  large  insurance;  it 
requires  skill,  and  it  requires  patient  labor;  and  when 
the  fish  is  landed  upon  the  deck,  his  value  there, 
which  is  to  be  counted  in  cents  rather  than  in  dollars, 
is  the  result  of  all  these  things  combined;  and  if  any 
man  can  tell  me  what  proportion  of  those  cents  or 
dollars  which  that  fish  is  worth  on  the  deck  of  the 
vessel  is  owing  to  the  fact  that  the  fishermen  had  a 
right  to  try  for  him,  I  think  he  will  have  solved  a 
problem  little  short  of  squaring  the  circle,  and  his 
name  ought  to  go  down  to  posterity.  No  political 
economist  can  do  it.  I  will  not  say  that  the  fish  in  the 
deep  sea  is  worth  nothing;  but,  at  all  events,  the  right 
to  attempt  to  catch  it  is  but  a  liberty,  and  the  result 
depends  upon  the  man. 

If  there  can  be  no  other  fishery  than  the  one  which 
you  have  the  privilege  of  resorting  to,  then  it  may  be 
of  great  value  to  you  to  have  that  privilege.  If  there 
be  but  one  moor  where  he  can  shoot,  the  person  who 
is  shooting  for  money,  to  sell  the  game  that  he  takes, 
may  be  willing  to  pay  a  high  price  for  the  privilege. 
But  recollect  that  the  fishing  for  the  free-swimming 


HALIFAX  FISHERY  COMMISSION  395 

fish  is  over  the  whole  ocean.  The  power  of  extending 
it  a  little  nearer  shore  may  be  of  some  value,  —  I  do 
not  say  that  it  is  not,  —  but  it  strikes  my  mind  as 
an  absurd  exaggeration,  and  as  an  utter  fallacy,  to 
attempt  to  reason  from  the  market  value  of  the  fish 
there  caught,  to  the  money  value  of  the  privilege 
so  extended.  The  fish  are  worth,  I  will  say,  $12.00  a 
barrel;  but  what  does  that  represent,  when  the  Ameri 
can  merchants,  Hall  and  Myrick,  both  tell  us  that 
the  value  on  the  wharf  at  Prince  Edward  Island  is 
about  $3.75  a  barrel?  Well,  suppose  the  mackerel  to 
be  worth  $3.75  a  barrel  on  the  wharf  in  Prince  Ed 
ward  Island,  what  does  that  represent?  Is  that  a 
thing  which  the  United  States  is  to  pay  Great  Britain 
for?  Has  Great  Britain  sold  us  a  barrel  of  pickled 
mackerel  on  the  wharf?  Has  anybody  done  it?  I 
think  not.  That  represents  the  result  of  capital  and 
of  many  branches  of  labor.  Then,  if  you  ask,  "What 
is  the  worth  to  Mr.  Hall  or  Mr.  Myrick  of  the  mack 
erel  on  the  deck  of  the  vessel?"  I  say,  it  is  next  to 
nothing.  The  fish  will  perish  if  he  is  not  taken  care 
of.  Skill  is  to  be  used  upon  him,  then;  what  costs 
money  is  to  be  used  upon  him,  ice  and  pickle,  and  he 
is  to  be  preserved.  All  this  to  the  end  that  he  may 
eventually,  after  a  great  deal  of  labor,  skill,  and  cap 
ital,  be  sent  to  the  market.  But,  recollect  that  the 
vessel  from  whose  deck  he  was  caught  cost  $8000. 
Recollect,  that  the  men  who  maintain  that  crew  and 
feed  them,  and  enable  them  to  clothe  themselves  and 
follow  that  pursuit,  are  paying  out  large  sums  of 
money.  Recollect,  that  the  fisher  man  who  catches  the 
fish  has,  as  the  result  of  many  years'  labor,  which  may 
be  called  an  investment,  learned  how  to  catch  him ;  and 
it  is  by  the  combination  of  all  these  causes,  that  at 


396  RICHARD  HENRY  DANA,  JR. 

last  the  fish  is  landed.  Now,  in  my  judgment,  it  is 
purely  fallacious  to  attempt  to  draw  any  inference 
from  the  market  value  of  the  fish  to  the  right  to 
extend  your  pursuit  of  those  animals  nearer  the  coast 
than  before,  or  to  the  market  value  of  any  right  to 
fish  over  a  certain  portion  of  the  ocean,  when  all 
other  oceans  are  open  to  you,  and  all  other  fish 
eries. 

Your  Honors,  of  course,  recollect  that  the  mackerel 
fishery,  taken  at  its  best,  —  I  don't  confine  myself 
to  the  inshore  fishery;  I  mean  the  mackerel  fishery 
of  the  Bay  and  the  Gulf,  at  its  best,  the  whole  of  it, 
-is  of  a  greatly  decreasing  and  precarious  value. 
I  speak  only  of  the  salted  mackerel  that  is  sent  into 
the  United  States.  The  lake  fish  are  fast  becoming  a 
substitute  for  salt  mackerel.  I  will  call  your  Honors' 
attention  to  two  or  three  rather  striking  proofs  which 
were  not  read  previously  by  Judge  Foster. 

[Then  follow  references  to  testimony  in  support.] 
Then  there  are  other  fresh  fish  that  are  taking  the 
place  of  the  salt  mackerel.  The  question  is  not  be 
tween  British  mackerel  and  American  mackerel,  but 
it  is  between  mackerel  and  everything  else  that  can 
be  eaten:  because,  if  mackerel  rise  in  market  price, 
and  in  the  cost  of  catching,  people  will  betake  them 
selves  to  other  articles  of  food.  There  is  no  necessity 
for  their  eating  mackerel.  The  mackerel  lives  in  the 
market  only  upon  the  terms  that  it  can  be  cheaply 
furnished.  This  tribunal  will  recollect  that  interest 
ing  witness,  Mr.  Ashby,  from  Noank,  Conn.;  how 
enthusiastic  he  was  over  the  large  halibut  that  he 
caught;  how  his  eyes  gleamed,  and  his  countenance 
lightened,  when  he  told  your  Honors  the  weight  of 
that  halibut,  the  sensation  produced  in  Fulton  Mar- 


HALIFAX  FISHERY  COMMISSION  397 

ket  when  he  brought  him  there,  and  the  very  homely, 
but  really  lucid  way  in  which  he  described  the  superior 
manner  by  which  they  were  able  to  preserve  those 
fish  in  ice,  and  the  way  they  were  brought  into  mar 
ket;  and  how  the  whole  horizon  was  dotted  with 
vessels  fishing  for  halibut,  and  other  fresh  fish,  with 
which  to  supply  the  great  and  increasing  demand  in 
the  New  York  market.  There  is  also  the  testimony 
of  Professor  Baird,  who  speaks  of  various  kinds  of  fish. 
It  is  not  worth  while  to  enumerate  them  all,  but  he 
speaks  especially  of  a  fish  known  as  "mullet"  on  the 
Southern  coast.  So  long  as  slavery  existed,  it  is  un 
doubtedly  true  that  there  was  very  little  enterprise 
in  this  direction.  It  suffered  like  everything  else  but 
cotton,  rice  and  sugar,  staples  which  could  be  culti 
vated  easily  by  slave  labor.  Almost  every  other  form 
of  agriculture,  almost  all  kinds  of  maritime  labor, 
ceased.  The  truth  was,  the  slaves  could  not  be  trusted 
in  boats.  The  boats  would  be  likely  to  head  off  from 
South  Carolina  or  Virginia,  and  not  be  seen  again. 
The  vessels  that  went  to  the  ports  of  the  slave  States 
were  Northern  vessels,  owned  and  manned  by  North 
ern  people.  Southern  people  could  not  carry  on  com 
merce  with  their  slaves,  nor  fishing  with  their  slaves. 
Slavery  being  now  abolished,  the  fisheries  of  the 
Southern  States  are  to  be  developed.  The  negro  will 
fish  for  himself.  He  will  have  no  motive  for  running 
away  from  his  own  profits.  The  result  has  been  that 
this  mullet  has  come  into  very  considerable  import 
ance.  Professor  Baird  has  his  statistics  concerning 
it,  and  he  has  certainly  a  very  strong  opinion  that 
that  fish  is  in  danger  of  excluding  salted  mackerel 
from  the  Southern  markets  (indeed,  it  is  almost 
excluded  now) ,  and  that  it  will  work  its  way  up  to  the 


398  RICHARD  HENRY  DANA,  JR. 

Northern  markets.  Some  of  the  Southern  people 
think  very  highly  of  it,  as  the  best  kind  of  fish,  think 
it  has  not  its  superior  in  the  ocean;  but,  supposing 
that  to  be  local  exaggeration  and  patriotic  enthusiasm, 
yet  certainly  it  is  a  useful  and  valuable  fish,  and  the 
demand  for  it  is  rapidly  increasing.  Professor  Baird 
says,  on  page  460,  that  one  million  barrels  of  mullet 
could  be  furnished  annually,  from  the  south  shore  of 
Chesapeake  Bay  to  the  south  end  of  Florida,  if  they 
were  called  for. 

Your  Honors  will  recollect,  as  a  striking  illustra 
tion  of  the  truth  of  the  power  of  propagation,  the 
statement  of  Professor  Baird  in  regard  to  the  River 
Potomac,  where  a  few  black  bass,  some  half  dozen, 
were  put  into  the  river,  and  in  the  course  of  a  few 
years  they  were  abundant  enough  to  supply  the  mar 
ket.  Fish  culture  has  become  a  very  important  mat 
ter,  and  what  we  call  in  New  England  our  "ponds," 
small  lakes  and  rivers,  are  guarded  and  protected,  and 
every  dam  built  across  any  river  where  anadromous, 
or  upward-going  fish,  are  to  be  found,  has  always  a 
way  for  their  ascent  and  descent;  so  that  everything 
is  done  to  increase  the  quantity,  kind,  and  value  of 
all  that  sort  of  fish,  making  the  salted  mackerel  less 
important  to  the  people,  and  in  the  market. 

Then  the  improved  methods  of  preserving  fish  are 
astonishing.  I  think  the  evidence  on  that  point  was 
principally  from  Professor  Baird,  who  has  described 
to  us  the  various  methods  by  which  fish,  as  well  as 
bait,  may  be  preserved.  He  told  us  that  for  months, 
during  the  hottest  part  of  the  Exhibition  season  at 
Philadelphia,  during  our  Centennial  year,  fish  were 
kept  by  these  improved  chemical  methods  of  drying, 
and  methods  of  freezing,  so  that  after  months,  the 


HALIFAX  FISHERY  COMMISSION  399 

Commissioners  ate  the  fish,  and  found  them  very 
good  eating.  There  was  no  objection  whatever  to 
them,  although,  of  course,  they  were  not  quite  as 
good  as  when  they  were  entirely  fresh.  So  that  all 
science  seems  to  be  working  in  favor  of  distribution, 
instead  of  limitation,  of  what  is  valuable  for  human 
consumption;  and  the  longer  we  live,  and  the  more 
science  advances,  the  less  can  any  one  nation  say  to 
the  fishermen  of  another,  Thus  far,  and  no  farther! 
We  turn  upon  such  an  attempt  at  once,  and  say, 
"Very  well;  if  you  choose  to  establish  your  line  of 
exclusion,  do  it.  If  you  choose  to  throw  all  open,  do 
so.  We  prefer  the  latter  as  the  generous,  the  more 
peaceful  and  safe  method  for  both  parties.  If  you 
prefer  the  former,  take  the  expense  of  it,  take  the 
risk  of  it,  take  the  ignominy  of  it!  If  you  give  it  up, 
and  it  costs  you  anything  to  do  so,  we  will  pay  you 
what  it  is  worth  to  us." 

I  certainly  hope  that  after  our  offer  to  open  the 
books  of  any  merchant  in  Gloucester,  or  any  number 
of  merchants,  to  the  other  side,  it  will  not  be  said  that 
we  have  selected  our  witnesses.  The  witnesses  that 
we  brought  here,  both  fishermen  and  owners,  said 
that  the  bay  fishery  was  dying  out.  They  show  it  by 
their  own  statistics,  and  the  statistics  of  the  town  of 
Gloucester  show  how  few  vessels  are  now  engaged 
in  the  bay  fishery;  that  they  are  confining  their  atten 
tion  to  cod  fishing  and  shore  fishing,  with  weirs,  nets, 
pounds,  and  seines. 

We  did  not  bring  the  bankrupt  fish-dealers  from 
Gloucester,  the  men  who  have  lost  by  attempting  to 
carry  on  these  bay  fisheries,  as  we  might  have  done. 
We  did  not  bring  those  who  had  found  all  fishing 
unprofitable,  and  had  moved  away  from  Gloucester, 


400  RICHARD  HENRY  DANA,  JR. 

and  tried  their  hand  upon  other  kinds  of  business. 
We  brought,  on  the  other  hand,  the  most  prosperous 
men  in  Gloucester.  We  brought  those  men  who  had 
made  the  most  out  of  the  fisheries,  the  men  who  had 
grown  richest  upon  them,  and  we  exhibited  their 
books;  and  as  we  could  not  bring  up  all  the  account- 
books  of  Gloucester  to  this  tribunal,  we  besought  the 
other  side  to  go  down,  or  send  down  a  commission, 
and  examine  them  for  themselves.  I  certainly  think 
we  have  a  right  to  say,  that  we  have  turned  Gloucester 
inside  out  before  this  tribunal,  with  the  result  of  show 
ing  that  the  bay  fishing  has  gradually  and  steadily 
diminished,  that  the  inshore  fishery  is  unprofitable, 
that  the  bay  fishery  has  been  made  a  means  of  sup 
port  only  to  the  most  skilful,  and  by  those  laborious 
and  frugal  methods  which  I  have  before  described  to 
this  tribunal. 

I  have  no  instructions  from  my  country,  gentlemen 
of  the  Commission,  and  no  expectation  from  its 
government,  that  I  should  attempt  to  depreciate  the 
value  of  anything  that  we  receive.  We  are  not  to 
go  away  like  the  buyer  in  the  Scripture,  saying,  "It 
is  nought;  it  is  nought";  but  we  have  referred  to  a 
Commission,  which  will  stand  neutral  and  impartial, 
to  determine  for  us;  and  no  proclamation  of  opinion, 
however  loud,  will  have  any  effect  upon  that  Com 
mission.  My  country  stands  ready  to  pay  anything 
that  this  Commission  may  say  it  ought  to  pay,  as  I 
have  no  doubt  Great  Britain  stands  content,  if  you 
shall  be  obliged  to  say,  what  we  think  in  our  own 
judgment  you  should  say,  that  you  cannot  see  in  this 
extension,  along  the  fringes  of  a  great  garment,  of 
our  right  to  fish  over  portions  of  this  region,  anything 


HALIFAX  FISHERY  COMMISSION  401 

which  equals  the  money  value  that  the  British 
Dominion  and  Provinces  certainly  receive  from  an 
obligation  on  our  part  to  lay  no  duties  whatever  upon 
their  importations  of  fish  and  fish-oil.  But  while  we 
are  not  here  to  depreciate  anything,  it  is  our  duty  to 
see  to  it  that  no  extravagant  demands  shall  pass  unchal 
lenged,  to  meet  evidence  with  evidence,  and  argument 
with  argument,  fairly,  before  a  tribunal  competent  and 
able.  We  do  not  mean  that  our  side  shall  suffer  at  all 
from  too  great  depreciation  of  the  evidence  and  argu 
ments  of  the  counsel  for  the  Crown,  as  we  feel  quite 
sure  that  the  cause  of  the  Crown  has  suffered  from 
the  extravagant  demands  with  which  its  case  has 
been  opened,  and  the  extravagant  and  promiscuous 
kind  of  evidence,  of  all  sorts  of  damages,  losses,  and 
injuries,  which  it  saw  fit  to  gather  and  bring  before 
this  tribunal,  from  the  fisherman  who  thought  that 
his  wife  had  been  frightened  and  his  poultry-yard 
robbed  by  a  few  American  fishermen  out  upon  a  lark, 
to  the  Minister  of  Marine  and  Fisheries  of  the  Do 
minion,  with  his  innumerable  light-houses  and  buoys 
and  improved  harbors.  We  are  to  meet  argument 
with  argument,  evidence  with  evidence,  upon  the 
single  question  submitted ;  and  that  is,  as  I  have  had 
the  honor  to  state  before,  "Is  there  a  money  value  in 
this  extension  of  our  right,  or  rather  this  withdrawal 
of  the  claim  of  exclusion,  on  the  part  of  Great  Britain, 
greater  than  the  value  which  Great  Britain  certainly 
receives  from  our  guaranty  that  we  will  lay  no  duties 
whatever  upon  her  fish  and  fish-oil?" 

Now,  may  it  please  your  Excellency,  the  question 
is  not  whether  two  dollars  a  barrel  on  mackerel  and 
one  dollar  a  barrel  on  herring  is  prohibitory,  because 
we  had  a  right,  before  making  this  treaty,  to  lay 


402  RICHARD  HENRY  DANA,  JR. 

duties  that  should  be  prohibitory,  if  those  were  not. 
If  two  dollars  were  not,  we  could  lay  as  much  as  we 
pleased;  so  that  it  would  be  an  imperfect  considera 
tion  of  this  case,  it  has  been  all  along  an  imperfect 
consideration  of  this  case,  to  ask  the  question  whether 
two  dollars  a  barrel  is  prohibitory,  whether  two  dol 
lars  a  barrel  on  mackerel  or  one  dollar  a  barrel  on 
herring  can  be  overcome  by  any  commercial  method 
or  enterprise  of  the  Dominion  and  the  Provinces. 
The  question  has  been  between  the  right  to  be  secured 
against  laying  duties  indefinitely,  on  the  part  of  the 
United  States,  on  the  one  hand,  and  this  extension 
of  the  right  of  fishing  a  little  nearer  to  the  shores,  on 
the  other.  We  could,  if  we  saw  fit,  make  a  kind  of  self- 
adjusting  tariff,  that  whenever  fish  rose  above  a  cer 
tain  price,  then  the  Dominion  fish  might  be  admitted, 
and  otherwise  not;  or  we  could  hold  it  in  our  hands, 
and  legislate  from  day  to  day  as  we  saw  fit. 

Before  leaving  this  question  of  the  money  value 
of  the  withdrawal  of  the  claim  of  exclusion  from  a 
portion  of  this  coast  by  Great  Britain,  I  must  take 
the  liberty  to  repeat  to  this  Court,  that  I  may  be  sure 
that  it  does  not  escape  their  fullest  attention,  that 
the  right  to  exclude  us,  independent  of  the  Treaty  of 
1818,  we  do  not,  and  never  have  acknowledged;  and 
by  the  Treaty  of  1818,  we  arranged  it  as  a  compro 
mise  on  a  disputed  question.  That  claim  to  exclude 
is  contested,  difficult  of  interpretation,  expensive, 
and  dangerous.  The  geographical  limit  is  not  easily 
determined;  in  respect  to  bays  and  harbors,  it  is 
entirely  undetermined,  and  apparently  must  remain 
so,  each  case  being  a  case  a  good  deal  sui  generis;  and 
the  meaning  and  extent  of  the  power  and  authority 
which  goes  with  that  geographical  extension  beyond 


HALIFAX  FISHERY  COMMISSION  403 

the  shore,  whatever  it  may  be,  is  all  the  more  uncer 
tain  and  undetermined.  Under  the  Treaty  of  1818, 
my  country  certainly  did  agree  that  she  would  not 
fish  nor  assert  the  claim  to  the  right  of  fishing  within 
three  miles  of  a  certain  portion  of  this  great  bay. 
Great  Britain,  by  the  Treaty  of  1871,  has  withdrawn 
all  claims  to  exclude  us  from  that  portion;  and  we 
agreed  that  if  there  is  any  pecuniary  value  in  that 
beyond  the  pecuniary  value  of  what  we  yield,  we 
stand  ready  to  make  the  requisite  compensation. 

It  is  extremely  difficult,  certainly  to  my  mind,  and 
I  cannot  but  think,  from  conversation  and  reading, 
that  it  must  be  to  others,  to  determine  the  pecuniary 
value  of  a  mere  faculty,  as  we  may  call  it,  a  faculty 
according  to  the  Roman  law,  a  liberty,  perhaps,  of 
endeavoring  to  catch  the  free-swimming  fish  of  the 
ocean.  What  is  its  pecuniary  value?  How  is  it  to  be 
assessed  and  determined?  Why,  it  is  not  to  be  assessed 
or  determined  by  the  amount  of  fish  actually  caught. 
That  may  be  very  small,  or  may  be  very  large.  The 
market  value  may  be  raised  or  decreased  by  accident; 
a  war  may  so  cut  us  off  from  making  use  of  the  privi 
lege,  that  we  should  take  nothing.  It  does  not  fol 
low,  therefore,  that  we  are  to  pay  nothing.  Some 
cause,  some  accident,  some  mistake  of  judgment, 
may  send  a  very  large  fleet  here,  at  a  very  great  ex 
pense  of  men  and  money;  we  may  make  a  very  large 
catch,  more  than  we  can  dispose  of,  but  the  pecuniary 
value  of  that  catch  is  no  test  of  the  value  of  the  lib 
erty  of  trying  to  catch  the  fish.  Then,  what  is  the 
test?  Is  the  use  made  a  test?  Although,  at  first  glance, 
it  might  seem  that  that  was  scarcely  a  test,  yet  I 
think  that,  on  the  whole,  in  the  long  run,  if  you  have 
a  sufficient  period  of  time  to  form  a  fair  judgment,  if 


404  RICHARD  HENRY  DANA,  JR. 

your  judgment  is  based  upon  the  use  made  by  persons 
who  are  acting  for  their  own  interests  in  a  large  market, 
then  you  may  form  some  judgment  from  the  use  actu 
ally  made.  This  case  has  been  likened  by  the  counsel  for 
the  Crown  to  one  where  an  individual  has  hired  a  farm, 
and  on  the  farm  there  is  a  house  or  dwelling,  and  he 
has  not  used  it.  Of  course  he  has  to  pay  for  it,  whether 
he  uses  it  or  not.  It  is  at  his  disposal;  it  belongs  there; 
it  is  fixed  there,  and  he  may  enter  it  when  he  pleases, 
and  it  is  of  no  account  whether  he  does  use  it  or  does 
not.  But  if  the  question  was,  whether  a  certain  re 
gion  of  a  city  and  the  buildings  thereon  were  of  real 
value  or  not,  and  it  was  brought  up  as  an  argument 
against  them,  that  they  were  not  wholesome  and  not 
habitable,  certainly  the  fact  that  in  the  market,  for 
a  long  period  of  years,  purchasers  or  tenants  could 
not  be  found,  would  be  a  very  strong  argument 
against  their  value. 

Now,  with  reference  to  these  fisheries,  what  is  the 
value  of  the  mere  faculty  or  liberty  of  going  over 
these  fishing  grounds,  and  throwing  overboard  our 
costly  bait,  and  embarking  our  industry,  capital,  and 
skill,  in  the  attempt  to  catch  the  fish?  We  venture 
to  say,  that  we  have  had  many  years  of  experience, 
and  that  there  have  been  long  periods  of  time  when 
those  fisheries  have  been  opened  to  us,  and  they  have 
been  closed  for  short  periods  of  time;  that  from  1871 
down  to  the  present  time  we  have  also  had  a  fair  test; 
and  when  we  show,  by  undisputed  testimony,  that 
the  citizens  of  the  United  States,  during  long  periods 
of  time,  and  as  a  result  of  long  experience,  have  come 
to  the  conclusion  that  they  are  not  of  sufficient  value 
to  warrant  them,  as  merchants  and  as  men  acting 
for  their  own  interests,  to  make  much  use  of  them, 


HALIFAX  FISHERY  COMMISSION  405 

I  submit  that  we  have  brought  before  the  tribunal 
a  perfectly  fair  argument,  and  a  very  valuable  test; 
because  it  is  not  what  one  man  will  do  with  one  house; 
it  is  not  what  one  ship-master  or  one  ship-owner  may 
fancy  about  the  inshore  or  the  outshore  fisheries; 
but  it  is  a  question  of  what  a  large  number  of  men, 
acting  for  their  own  interests,  in  a  very  large  market, 
full  of  competition,  will  do.  If,  on  inquiring  into  the 
state  of  that  market,  and  the  conduct  of  such  men, 
who  cannot  be  governed  by  any  peculiar  and  special 
motive  bearing  upon  this  case,  we  have  produced  a 
fair  and  influential  consideration,  we  claim  that  that 
is  entitled  to  its  fair  weight.  You  might  well  say, 
perhaps,  of  a  few  fishermen  of  Gloucester,  that  so 
deep  was  their  hostility  to  the  British  Provinces,  that 
they  would  be  willing  to  abstain  from  using  these 
fisheries,  just  for  the  purpose  of  reducing  the  amount 
that  this  tribunal  might  find  itself  called  upon  to 
adjudge.  But,  if  there  should  be  one  such  man,  so 
endowed  with  disinterested  malice,  I  am  quite  cer 
tain  that  this  tribunal  will  not  believe  so  of  the  entire 
fishing  community  of  buyers  and  sellers,  fishermen 
and  merchants,  acting  for  a  series  of  years,  in  view  of 
their  own  interests.  If,  therefore,  we  have  shown,  as 
we  certainly  have,  that  the  use  of  this  Bay  fishery,  as 
an  entirety,  the  whole  of  it,  deep-sea  and  inshore 
alike,  has  steadily  diminished  in  market  value,  that 
our  ship-owners  are  withdrawing  their  vessels  from 
it,  that  fewer  and  fewer  are  sent  here  every  year,  and 
that  they  have  said,  man  after  man,  that  they  do  not 
value  the  extension  of  the  territorial  privilege,  where 
that  extension  is  always  inshore,  bringing  them  into 
more  dangerous  and  less  profitable  regions, — that 
being  the  case,  we  ask  your  Honors  to  consider  all 


406  RICHARD  HENRY  DANA,  JR. 

this  as  fair  proof  of  the  slight  value  which  is  actually 
put,  by  business  men,  acting  in  their  own  interests, 
upon  what  has  been  conceded  to  us. 

Now,  what  is  this  that  has  been  conceded  to  us,  or 
rather,  what  is  this  claim  of  exclusion  from  which 
Great  Britain  has  agreed  to  withdraw  herself  during 
the  period  of  this  treaty?  What  is  the  privilege? 
It  is  the  privilege  of  trying  to  catch  fish  within  that 
limit.  That  is  all  it  is.  Now,  if  in  company  with  this 
privilege,  Great  Britain  had  furnished  the  fish,  so 
that  we  should  not  have  to  employ  vessels,  or  men, 
or  skill,  or  labor,  or  industry,  furnished  them  to  us 
on  the  wharf  at  Prince  Edward  Island,  then  there 
might  be  some  analogy  between  that  and  a  lease. 
What  is  it  like?  Is  it  like  the  value  of  a  privilege  to 
practise  law?  Not  quite,  because  there  always  will 
be  lawsuits,  but  it  is  not  sure  that  there  always  will 
be  mackerel.  Suitors,  irritated  men,  may  be  meshed 
within  the  seine  which  the  privileged  lawyer  may  cast 
out;  but  it  does  not  follow  that  the  mackerel  can  be. 
On  the  contrary,  they  are  so  shrewd  and  so  sharp  that 
our  fishermen  tell  us  that  they  cannot  use  a  seine 
within  their  sight;  that  they  will  escape  from  it.  But 
the  lawyer  is  so  confident  in  the  eagerness  of  the  client 
for  a  lawsuit,  that,  instead  of  concealing  himself,  and 
taking  him  unawares,  he  advertises  himself  and  has 
a  sign  on  his  place  of  business.  Suppose  we  were  to 
compare  it  to  the  case  of  a  lawyer  who  had  a  general 
license  to  practise  law  in  all  parts  of  a  great  city,  but 
not  a  monopoly;  everybody  else  had  the  same  right; 
but  he  was  excluded  from  taking  part  in  cases  which 
should  arise  in  a  certain  suburb  of  that  city,  —  not  the 
best,  not  the  richest,  not  the  most  business-like,  — 
and  which  had  lawyers  of  its  own,  living  there,  accus- 


HALIFAX  FISHERY   COMMISSION  407 

tomed  to  the  people,  who  asserted  a  right  to  conduct 
all  the  lawsuits  that  might  arise  in  that  district.  What 
would  it  be  worth  to  a  lawyer  who  had  the  whole  city 
for  the  field  of  labor,  plenty  to  do,  to  have  his  right 
extended  into  that  suburb?  What  would  it  be  worth 
if  that  suburb  was  an  indefinable  one,  not  bounded 
by  streets,  but  by  some  moral  description,  about 
which  there  would  be  an  eternal  dispute,  and  about 
which  the  lawyer  might  be  in  constant  trouble  with 
the  policeman?  What  would  be  its  value?  Who  can 
tell?  Or  a  physician  or  merchant.  Suppose  a  merchant 
is  asked  to  pay  for  a  license  to  buy  and  sell,  to  keep 
a  retailer's  shop;  everybody  else  has  the  same  right 
that  he  has,  and  half  the  people  are  doing  it  without 
any  license;  but  he  is  asked  to  pay  for  a  license. 
What  is  it  worth  to  him?  Why,  not  much,  at  best. 
But  suppose  that  the  license  was  confined  to  the  right 
to  deal  in  Newfoundland  herring.  While  everybody 
else  could  deal  with  other  fish,  his  license  extended 
his  trade  to  Newfoundland  herring  alone.  Why,  his 
answer  would  be,  "There  are  plenty  of  herring  from 
other  places  that  I  can  deal  with.  There  is  a  large  catch 
in  the  Gulf;  there  is  a  large  catch  on  the  Labrador 
shore;  and  what  is  it  worth  to  me,  with  my  hands 
full  of  business,  to  be  able  to  extend  it  a  little  farther, 
and  include  the  dealing  with  this  particular  kind  of 
fish?" 

None  of  the  analogies  seem  to  me  to  hold.  Your 
Honors  can  do  nothing  else  than  first  to  look  at  the 
practical  result  in  the  hands  of  business  men;  and  the 
result  is  this :  to  those  who  live  upon  the  shore  and  can 
go  out  day  after  day,  and  return  at  night,  in  small 
boats,  investing  but  little  capital,  going  out  whenever 
they  see  the  mackerel  and  not  otherwise,  and  coming 


408  RICHARD  HENRY  DANA,  JR. 

back  to  finish  a  day's  work  upon  their  farms,  —  to 
them  it  is  profitable,  for  almost  all  they  do  is  profit; 
but  to  those  who  came  from  a  distance,  requiring  a 
week  or  a  fortnight  to  make  the  passage,  in  large 
vessels,  which  the  nature  of  the  climate  and  of  the 
seas  requires  should  be  large  and  strong  and  well 
manned,  who  have  the  deep  sea  before  them,  and 
innumerable  banks  and  shoals,  where  they  can  fish, 
-  to  them,  the  right  to  fish  a  little  nearer  inshore  is 
of  very  much  less  value.  That  is  the  position  of  the 
American.  The  other  is  the  position  of  the  English 
man.  And  the  fact  that  we  have  steadily  withdrawn 
more  and  more,  from  that  branch  of  the  business, 
is  a  proof  that  it  is  of  little  value. 

Then,  beyond  that,  I  suppose  you  must  make  some 
kind  of  estimate,  for  I  am  not  going  to  argue  that  the 
faculty  is  of  no  value.  I  suppose  the  right  to  extend 
our  fisheries  so  far  is  of  some  value.  I  can  find  no 
fair  test  of  it.  But  recollect,  Mr.  President  and 
gentlemen,  as  I  say  again,  that  it  is  but  a  faculty, 
which  would  be  utterly  useless  in  the  hands  of  some 
people.  Why,  it  has  been  found  utterly  useless  in  the 
hands  of  the  inhabitants  of  this  Dominion.  What 
did  they  do  with  it  before  they  took  to  their  day  and 
night  boat-fishing?  What  has  become  of  their  fishing 
vessels?  Gone!  The  whole  inshore  and  outshore 
fishery  became  of  no  value  to  them,  until  they  sub 
stituted  this  boat-fishing,  which  we  cannot  enter 
into.  Then,  having  before  you  this  very  abstract 
right  or  faculty,  obliged  to  disconnect  from  it  every 
thing  except  this,  —  that  it  is  an  extension  of  the  field 
over  which  we  had  a  right  to  work,  —  you  can  get 
nothing,  I  think,  upon  which  you  can  cast  a  valuation. 
Nor  is  it  strictly  analogous  to  a  field  for  labor,  because 


HALIFAX  FISHERY  COMMISSION  409 

a  field  for  labor  is  a  specific  thing.  When  you  buy  it, 
you  know  what  it  will  produce;  and  if  you  sow  certain 
seed,  you  will  get  certain  results;  and  then,  having 
deducted  the  value  of  your  labor,  and  skill,  and  in 
dustry,  and  capital,  and  allowed  yourself  interest, 
the  residue,  if  any,  is  profit.  That  depends  upon  the 
nature  of  the  soil  with  which  you  have  been  dealing. 
But  nothing  of  that  sort  can  be  predicated  of  the  free- 
swimming  fish.  They  are  here  to-day  and  there  to 
morrow;  they  have  no  habitat;  they  are  nobody's 
property,  and  nobody  can  grant  them. 

I  have  dealt  with  this  subject  as  I  said  we  were  to 
deal  with  it;  not  to  depreciate  it  unreasonably,  but 
to  analyze  it,  and  try  to  find  out  how  we  are  to  meas 
ure  it.  And  having  analyzed  it  in  this  way,  —  which 
I  am  sure  is  subject  to  no  objection,  unless  I  carry  it 
to  an  extreme;  the  methods  which  I  have  used  in 
themselves  are  subject  to  no  objection,  —  it  cannot 
be  strange  to  your  Honors  that  the  people  of  the 
United  States  said,  through  their  government,  that 
in  securing  from  Great  Britain  her  withdrawal  of  this 
claim  of  exclusion  from  these  three  miles,  we  did  it, 
not  for  the  commercial  or  intrinsic  value  of  the  right, 
so  much  as  because  of  the  peace  and  freedom  from 
irritation  which  it  secured  to  us. 

And  that  leads  me  to  say,  what  perhaps  I  should 
have  otherwise  forgotten,  that  in  estimating  the  value 
to  the  people  of  the  United  States  of  the  right  to 
pursue  their  fisheries  close  to  the  shore  in  certain 
regions,  you  are  not  to  estimate  what  we  have  gained 
in  peace,  in  security  from  irritation,  from  seizures, 
and  from  pursuit.  Those  are  the  acts  and  operations 
of  the  opposite  party.  It  is  the  value  of  the  right  to 
fish  there,  alone,  that  you  are  to  consider.  Why,  if 


410  RICHARD  HENRY  DANA,  JR. 

you  pay  to  an  organ-grinder  a  shilling  to  go  out  of 
your  street  when  there  is  sickness  in  your  house,  it 
does  not  follow  that  his  music  was  worth  that  price. 
Nobody  would  think  of  considering  that  a  test  of  the 
value  of  his  music,  if  a  third  person  was  appointed  to 
determine  what  it  was.  So,  here;  what  we  were  will 
ing  to  do  to  get  rid  of  a  nuisance,  of  irritation,  of 
dangers  of  war,  of  honest  mistakes,  and  opportunities 
for  pretended  mistakes,  —  what  we  were  willing  to 
pay  for  all  that,  is  no  proof  of  the  price  at  which  we  set 
the  mere  liberty  of  being  there  peacefully  and  in  the 
exercise  of  a  right. 

Your  Honors  will  be  glad  to  know  that  I  am  now 
going  to  take  up  the  last  point  of  importance  in  our 
case;  and  that  is,  the  value  of  the  free  trade  which  this 
treaty  has  given  to  all  the  people  of  the  Provinces. 
Recollect  what  that  value  is.  It  is  true  that  in  1871, 
when  we  made  this  treaty,  our  duties  were  two  dol 
lars  a  barrel  on  mackerel  and  one  dollar  a  barrel  on 
herring;  but  our  right  was  to  make  these  duties  what 
ever  we  pleased,  —  absolute  exclusion,  if  two  dollars 
and  one  dollar  did  not  exclude.  We  had  a  right  to 
legislate  with  a  simple  view  to  our  own  interests  in 
that  matter;  and  neither  the  Crown  nor  the  Dominion 
could  be  heard  on  the  floor  of  Congress.  But  we  have 
bound  our  hands;  we  have  pledged  ourselves  that  we 
will  put  no  duties  on  any  of  their  fish  of  any  kind, 
fresh  or  cured,  salted  or  otherwise,  or  their  fish-oil. 
They  may,  so  long  as  the  treaty  lasts,  be  imported 
into  any  part  of  the  United  States  without  any  in- 
cumbrance  or  duty  whatever.  Now,  that  the  United 
States  is  the  chief  market  for  the  mackerel  of  these 
Provinces,  I  suppose  it  cannot  be  necessary  for  me  to 
refer  to  any  evidence  to  remind  your  Honors.  We 


HALIFAX  FISHERY  COMMISSION  411 

have  had  before  us  the  merchants  who  deal  most 
largely  in  Prince  Edward  Island,  Mr.  Hall  and  Mr. 
Myrick,  and  we  have  had  two  or  three  or  more  mer 
chants  of  Halifax,  who  did  not  come  here  for  the 
purpose  of  testifying  against  their  own  country,  and 
in  favor  of  the  United  States;  and  from  all  this  evi 
dence  it  appears  conclusively  that,  with  the  excep 
tion  of  some  inferior  mackerel,  ill-pressed  or  ill-cured, 
and  not  much  the  worse  for  heat,  that  may  be  sent 
to  the  West  Indies  to  be  consumed  by  slaves,  the 
entire  product  goes  to  the  United  States.  There  is  no 
market  for  it  in  Canada  proper;  and  the  merchants 
here,  the  dealers  in  fish,  lie  awaiting  the  telegraphic 
signal  from  Boston  or  New  York  to  send  there  what 
ever  of  best  mackerel  there  is,  now  that  they  are  free 
from  duty.  I  therefore  think  I  may  safely  pass  over 
the  testimony  introduced  to  prove  that  the  United 
States  is  the  great  market.  Some  statistics  were  pre 
pared  to  show  that  a  duty  of  two  dollars  a  barrel  was 
prohibitory.  In  my  view,  it  is  quite  immaterial.  I 
cannot  see  how  it  is  material,  because,  having  the 
power  to  lay  any  duties  we  pleased,  we  have  agreed 
to  lay  none,  and  the  benefit  to  Great  Britain,  to  these 
Provinces,  and  to  this  Dominion,  is  the  obtaining  of 
a  pledge  not  to  put  on  any  duty,  high  or  low,  from  a 
people  who  had  the  right  to  exclude  the  fish  utterly, 
or  to  make  their  utter  exclusion  or  their  admission 
dependent  upon  our  sense  of  our  own  interests  from 
day  to  day. 

The  evidence  presented  by  my  learned  friend  Judge 
Foster,  and  by  my  learned  friend  Mr.  Trescot,  to 
show  that  two  dollars  a  barrel  was  prohibitory,  on 
the  testimony  of  these  gentlemen  from  Prince  Ed 
ward  Island,  and  from  the  leading  dealers  in  Province- 


412  RICHARD  HENRY  DANA,  JR. 

town  and  in  Gloucester,  was  certainly  abundantly 
sufficient.  I  think  those  gentlemen  from  Prince  Ed 
ward  Island  said  that  if  those  duties  were  re-imposed, 
they  should  retire  from  the  business.  Mr.  James  H. 
Myrick  (page  432)  in  answer  to  the  question,  "I 
understand  you  to  say  that  if  the  duty  on  mackerel 
were  re-imposed  in  the  United  States  your  firm  would, 
except  for  a  small  portion  of  the  season,  give  up  the 
mackerel  business  and  turn  to  something  else?"  said, 
"That  is  my  opinion,  decidedly." 

Then  Mr.  Pew,  of  Gloucester,  testifies  to  the  same 
effect;  but  I  suppose  there  can  be  no  doubt,  under 
this  weight  of  testimony.  But  the  money  charge 
against  Great  Britain  is  for  the  privilege  of  exemption 
from  prohibitory  duties,  whatever  may  be  prohibitory, 
whether  it  be  two  dollars  or  more. 

Now,  how  was  it,  with  this  plain  fact  in  view,  that 
the  learned  counsel  for  the  Crown  were  able  to  pro 
duce  so  many  witnesses,  and  to  consume  so  much 
time,  in  showing  that  they  did  not,  after  all,  lose  much 
by  two  dollars  a  barrel  duty?  Why,  my  learned 
friends  who  have  preceded  me  have  exposed  that  very 
happily.  I  fear  if  I  were  to  say  anything,  I  should 
only  detract  from  the  force  of  their  argument;  but 
I  think  it  is  fair  to  say,  that  it  will  rest  on  our  minds 
after  we  have  adjourned  and  separated  as  a  most 
extraordinary  proceeding,  that  so  many  men  were 
found  in  various  parts  of  the  Island,  and  from  some 
parts  of  the  mainland,  who  came  up  here  and  said 
that  the  fact  that  they  paid  a  duty  of  two  dollars  on 
a  barrel  of  mackerel  before  they  sold  it  in  the  States, 
which  is  their  only  market,  did  not  make  any  differ 
ence  to  them.  They  said  it  did  not  make  any  differ 
ence.  They  did  not  say  it  made  little  difference,  but 


HALIFAX  FISHERY  COMMISSION  413 

they  said  it  did  not  make  any.  Now,  if  they  had  said, 
"We  can  catch  the  fish  so  much  cheaper,  because  this 
is  our  home;  we  can  catch  them  so  much  cheaper, 
because  we  catch  them  in  cheap  vessels  and  with 
cheap  materials,  close  by  where  we  live,  that  we  can 
afford  to  undersell,  to  some  extent,  the  American 
fishermen;  and  therefore  the  two  dollars  a  barrel  is 
not  all  to  be  counted  to  our  debit,"  that  would  be 
intelligible.  But  these  fishermen  suddenly,  by  the 
magic  wand  of  my  learned  friend,  the  Premier  of  the 
Island,  and  my  learned  friend  who  represents  —  I 
do  not  know  in  how  high  a  position  --  the  Province 
of  New  Brunswick,  were  all  turned  into  political 
economists.  "Well,  my  friend,"  says  the  learned 
counsel  for  Prince  Edward  Island,  with  that  enticing 
smile  which  would  have  drawn  an  affirmative  answer 
from  the  flintiest  heart,  "My  dear  friend,  about  this 
two  dollars  a  barrel  duty:  does  not  that  affect  your 
profit  in  selling  in  Boston? "  -  "No,"  says  the  ready 
witness.  —  "And  why  not?"  -"Why,  because  the 
consumer  pays  the  duty."  Then  the  next  witness, 
under  perhaps  the  sterner  —  but  still  equally  effec 
tive  —  discipline  of  the  counsel  from  New  Brunswick, 
has  the  question  put  to  him,  and  he  says,  "No";  and 
when  he  is  asked  how  this  phenomenon  is  to  be  ac 
counted  for,  he  says,  too,  that  "the  consumer  pays 
the  duty";  until,  at  last,  it  became  almost  tedious  to 
hear  man  after  man,  having  learned  by  heart  this  can 
tilena,—  "the  consumer  pays  the  duty,"  —perfectly 
satisfied  in  their  own  minds  that  they  had  spoken 
the  exact  truth,  say  that  it  did  not  make  any  differ 
ence. 

What  school  of  politicians,  what  course  of  public 
lectures,    what   course   of   political   speaking,   what 


414  RICHARD  HENRY  DANA,  JR. 

course  of  newspaper-writing,  may  have  led  to  that 
general  belief,  or  at  least  expectation,  of  those  fisher 
men  who  came  here  as  political  economists,  of  course 
it  is  not  for  me  to  say.  But  I  have  observed  one  thing, 
that  even  with  my  limited  knowledge  of  political 
economy,  and  under  even  my  cross-examination,  not 
one  of  those  witnesses  could  explain  what  he  meant 
by  the  phrase,  "the  consumer  pays  the  duty";  nor 
could  he  answer  one  question  that  went  to  test  the 
truth  of  the  maxim.  "  Suppose  the  duty  had  been  five 
dollars  a  barrel,  would  it  have  been  true  that  the  con 
sumer  paid  the  duty,  and  that  it  would  not  disturb 
you  at  all?"  Well,  they  did  not  know  but  that,  in 
that  case,  it  might  be  a  little  different.  "But  the 
principle  would  be  the  same?  "  No,  they  did  n't  know 
how  that  would  be.  "Will  the  demand  continue,  at 
that  price?"  That  they  did  not  know,  but  they 
assumed  it  would. 

The  truth  was,  as  the  Court  must  have  seen,  that 
they  were  simple,  honest  men,  who  had  a  certain 
phrase  which  they  had  learned  by  heart,  which  they 
used  without  any  evil  intent,  which  they  supposed 
to  be  true,  and  which,  to  their  minds,  cleared  the 
matter  all  up.  They  seemed  to  think  there  was  a 
certain  law,  --  they  did  not  know  what,  —  a  law  of 
nations,  a  law  of  political  economy,  by  which  it  came 
to  pass,  that,  whenever  they  brought  a  barrel  of 
mackerel  to  Boston  to  sell,  the  purchaser  went  kindly 
to  the  custom-house  and  paid  the  duties,  and  then, 
having  paid  the  duties,  was  prepared  to  deal  with  the 
owners  of  the  fish  on  the  same  terms  as  if  he  had  not 
done  so,  buy  the  fish,  and  pay  them  just  what  he 
would  pay  an  American;  and  by  some  law,  some  in 
exorable  law,  the  duties  were  paid  by  this  man;  and 


HALIFAX  FISHERY  COMMISSION  415 

the  duties  having  been  paid  by  him,  the  owners  might 
go  into  the  market  to  sell  as  low  as  anybody  else.  I 
think  the  question  was  not  put,  but  it  might  have  been 
put  to  them:  "Suppose  the  duty,  instead  of  being  laid 
by  the  United  States,  had  been  laid  by  the  Provinces. 
Suppose  the  Dominion,  for  some  reason  or  other, 
had  laid  a  tax  of  two  dollars  a  barrel  on  the  exporta 
tion  of  fish  to  the  United  States?  "  -  where  would 
this  political  economist  from  Gaspe  and  from  Shediac 
have  been  then?  Why,  certainly  he  would  have  had 
to  pay  his  two  dollars  a  barrel  before  his  fish  left  the 
Provinces,  and  he  would  have  landed  in  Boston  with 
his  barrel  of  mackerel,  so  far  as  the  duties  went,  two 
dollars  behind  the  American  fisherman. 

I  suppose  it  to  be  the  case,  that  the  British  subject 
can  catch  his  fish  and  get  them  to  Boston  cheaper 
than  the  American  can.  I  give  them  that  credit  on 
this  calculation,  and  I  hope  your  Honors  will  remem 
ber  it  when  you  come  to  consider  what  they  have 
gained  by  the  right  to  introduce  their  fish  on  free  and 
equal  terms  with  us.  They  are  persons  who  can  catch 
cheaper  and  bring  cheaper  than  our  own  people. 
However,  without  reasoning  the  matter  out  finely, 
we  must  come  to  this  result :  that  if  the  American  can 
supply  the  market  at  the  rate  of  twelve  dollars  a 
barrel,  and  make  a  reasonable  profit,  and  the  Cana 
dian  can  furnish  his  fish  at  the  rate  of  eleven  dollars 
and  make  a  reasonable  profit,  and  has  two  dollars 
duty  to  pay,  he  is  one  dollar  behind,  and  so  on.  This 
is  an  illustration.  It  must  ordinarily  be  so.  And  the 
only  time  when  it  can  be  otherwise  is  when  the  Ameri 
can  supply  fails,  and  fish  become  very  scarce.  I  am 
sure  that  when  I  began  the  investigation  of  this  case, 
I  should  have  thought  that  it  was  in  the  main  true, 


416  RICHARD  HENRY  DANA,  JR. 

that  as  fish  became  scarce  on  the  American  coast, 
and  from  the  American  fishermen  in  the  Bay  every 
where,  the  British  fishermen  coming  in  there  could, 
perhaps,  afford  to  pay  the  duty  and  still  sell.  But 
such  is  not  the  result.  The  figures  have  shown  it. 
That  has  been  proved.  The  difficulty  is,  that  mack 
erel  is  not  a  necessity.  It  is  not  British  mackerel 
against  American  mackerel,  but  it  is  British  salted 
mackerel  against  every  eatable  thing  in  nature,  that 
a  man  will  take  to  rather  than  pay  very  high  prices. 
And  it  is  true  that  fresh  fish  are  more  valuable  and 
more  desirable  than  salt  fish;  that  fresh  fish  are  in 
creasing  in  number;  that  they  are  brought  into  mar 
ket  in  quantities,  ten,  twenty,  a  hundred  per  cent 
larger  than  they  ever  were  before,  and  that  the  value 
of  the  salted  mackerel  is  steadily  and  uniformly 
decreasing. 

They  brought  men  here,  also,  who  stated,  under 
the  same  influence,  that  they  would  rather  see  the 
duties  restored,  and  have  the  three-mile  fishery 
exclusively  to  themselves,  than  to  have  what  they 
now  have.  But  I  observed  that  the  question  was 
always  put  to  them  in  one  form:  "Would  you  rather 
have  the  two-dollar  duty  restored?"  The  question 
was  never  asked  them:  "Would  you  rather  go  back 
to  the  state  of  things  when  the  United  States  could 
put  what  duty  upon  your  fish  they  might  see  fit,  and 
preserve  your  monopoly  of  the  three  miles?"  No 
man  would  have  answered  that  question  in  the  affirm 
ative.  I  venture  to  say,  may  it  please  this  learned 
tribunal,  that  no  man  of  decent  intelligence  and  fair 
honesty  could  have  answered  any  such  question 
affirmatively.  And  those  who  said  they  would  rather 
go  back  to  the  same  state  of  things  testified  under  a 


HALIFAX  FISHERY  COMMISSION  417 

great  deal  of  bias;  they  testified  under  a  very  strong 
interest,  on  a  subject  right  under  their  eyes,  which 
they  felt  daily,  and  which  they  may  have  been  made 
to  feel  by  the  urgency  of  others.  They  did  not  suffer 
at  all.  It  was  not  they  who  suffered  from  the  attempt 
to  exclude  us.  It  was  amusement  to  them,  though 
it  might  have  been  death  to  some  of  us;  and  they 
imagined  that  if  they  did  not  have  the  duty  to  pay, 
which  they  all  based  their  answer  upon,  of  course 
they  would  rather  go  back  to  free  trade  and  exclusion, 
for  in  their  minds  it  amounted  to  that.  They  had 
not  the  duty  to  pay,  although  one  was  laid;  and  of 
course  with  no  duty  to  pay,  they  would  rather  go 
back  to  that  old  state  of  things,  and  have  the  ex 
clusive  right  to  fish  within  three  miles.  I  think  that 
illusion  may  be  safely  predicated  of  nearly  all  the  wit 
nesses  brought  upon  the  opposite  side,  by  the  counsel 
for  the  Crown. 

A  good  deal  of  time  was  taken  up  on  each  side  in 
presenting  extracts  from  the  speeches  of  politicians 
and  parliamentarians,  and  men  in  Congress,  as  to 
what  was  the  real  value  of  free  trade  in  fish,  and  the 
real  value  of  the  right  to  fish  within  three  miles. 
Some  extracts  were  read  by  the  learned  counsel  for 
the  Crown  from  speeches  made  by  certain  members 
of  the  American  Congress,  who  had  a  point  to  carry; 
and  some  arguments,  much  stronger,  were  produced 
by  us  from  members  of  the  Dominion  government, 
who  also  had  a  point  to  carry.  I  do  not  attach  the 
very  highest  importance  to  either  of  them.  I  hope  I 
am  guilty  of  no  disrespect  to  the  potentates  and 
powers  that  be  in  saying  that,  because  I  have  always 
observed  that  men  in  public  life  who  have  points 
to  carry  will  usually  find  arguments  by  which  to 


418  RICHARD  HENRY  DANA,  JR. 

carry  them,  and  that  their  position  is  not  very  differ 
ent  from  that  of  counsel,  not  before  this  tribunal, 
but  counsel  in  court,  strictly  speaking,  who  have  a 
point  to  maintain,  and  who  have  a  verdict  to  get, 
because,  woe  to  the  statesman  whose  argument 
results  in  a  majority  of  negatives,  because  he  and  his 
whole  party,  under  the  Dominion  system,  go  out  of 
power.  It  is  not  so  with  us.  Our  members  of  Con 
gress  speak  with  less  responsibility.  They  do  not 
represent  the  government  in  the  House,  nor  do  they 
represent  the  opposition  in  such  a  sense  that  they  are 
bound  to  take  charge  of  the  government  the  moment 
those  in  charge  fail  of  retaining  public  approval.  Our 
politicians,  even  in  Congress,  are  a  kind  of  "free- 
swimming  fish."  They  are  rather  more  like  a  horse 
in  a  pasture  than  like  those  horses  that  are  carrying 
the  old  family  coach  behind  them.  They  feel  more 
at  liberty. 

When  we  consider  that  the  Dominion  parliamen 
tarians  speak  under  this  great  responsibility,  and 
meet  an  opposition  face  to  face,  who  speak  under 
equal  responsibilities,  when  we  consider  that  fact, 
and  the  number  of  them,  and  the  strength  of  their 
declarations,  all  to  the  effect  that  the  Provinces  could 
not  survive  our  duties  any  longer,  and  that  in  giving 
up  to  us  the  right  to  fish  within  the  three  miles,  much 
was  not  surrendered,  I  think  your  Honors,  without 
reading  it  all  over,  or  comparing  these  arguments, 
argument  for  argument,  may  say  at  once  that  what 
ever  weight  is  to  be  attached  to  them,  far  more  weight 
is  to  be  attached  to  the  utterances  of  the  British 
officers  than  to  the  few  American  politicians  who  may 
have  lifted  up  their  voices  on  this  subject,  in  their 
irresponsible  way.  Moreover,  —  your  Honors  cannot 


HALIFAX  FISHERY  COMMISSION  419 

have  forgotten  it,  —  the  fishermen  of  Provincetown 
and  Gloucester  remonstrated  against  this  Treaty  of 
1871.  They  remonstrated  against  it  as  hostile  to 
their  interests.  Be  it  so.  They  were  good  judges  of 
their  interests.  They  stated  that  taking  off  the  duties 
would  make  the  fish  cheap.  They  thought  so;  and 
they  did  not  consider  that  the  right  to  fish  (and  they 
were  fishermen,  and  knew  their  business)  within  the 
three  miles  was  any  compensation  for  that.  And  the 
remonstrance  was  made  at  the  time,  and  it  was  ear 
nest.  The  men  went  to  Washington  to  enforce  it. 
While  men  dealing  in  fish  remonstrated  against  this 
concession,  the  officers  of  the  British  Crown,  who  were 
responsible,  and  whose  constituents  were  fishermen 
and  fish-owners,  along  a  certain  line  of  the  Provinces, 
were  contending  earnestly  for  the  treaty,  as  beneficial, 
absolutely,  to  the  Provinces. 

Well,  it  has  been  said  that  they  knew  all  the  time 
that  there  was  money  to  be  paid.  They  knew  no  such 
thing.  They  knew  there  might  or  might  not  be  money 
to  be  paid,  because  this  tribunal  does  not  sit  here  to 
determine  only  the  quantum  that  the  United  States 
shall  pay,  but  first  and  foremost  to  determine  whether 
anything  shall  be  paid,  and  as  to  that,  these  officers 
of  the  British  Crown  could  not  pass  any  judgment. 
It  certainly  has  abundantly  appeared  in  this  case, 
that  the  exportation  of  fish  into  the  United  States, 
and  the  value  of  the  fish  here,  has  risen  and  fallen 
steadily,  and  almost  uniformly,  with  the  right  of  free 
trade,  or  the  obligation  to  pay  the  duty.  From  1854 
to  1866,  when  there  was  free  trade  in  fish,  and  we  had 
the  right  to  fish  where  we  pleased,  and  they  had  free 
trade,  and  sent  their  fish  to  the  American  markets, 
immediately  their  mackerel  fishery  increased  in 


420  RICHARD  HENRY  DANA,  JR. 

value.  Their  boat-fishing,  instead  of  being  a  matter 
of  daily  supply  for  the  neighborhood,  developed  into  a 
large  business.  The  boats  were  owned  by  merchants, 
large  quantities  were  shipped  from  them,  and  the 
business  increased  twofold,  threefold,  tenfold,  as  one 
of  their  own  witnesses  has  stated,  stimulated  by  the 
free  American  markets.  I  am  reminded  that  the  wit 
ness  said  it  had  increased  an  hundredfold.  Your 
Honors  will  perceive  my  moderation  in  all  things. 
The  witness  to  whom  I  refer  is  the  fellow  citizen  of 
our  friend  the  Premier  of  the  Island,  Mr.  John  F. 
Campion,  and  I  think  he  recognized  him  immediately 
upon  his  appearance  on  the  stand :  — 

"Q.  You  say  that  the  number  of  boats  and  men  engaged  in 
the  shore  fishery  have  increased;  has  the  catch  increased  to  any 
appreciable  extent?  A.  It  has  increased  to  the  same  ratio  as 
the  boats. 

"Q.  In  quite  the  same  ratio?  A.  Yes. 

"Q.  To  what  extent  did  you  say  the  number  of  boats  had 
increased  —  100  per  cent?  A.  I  would  say  that  this  has  been 
the  case  within  the  last  ten  years." 

"One  hundred  per  cent,"  says  Mr.  Campion,  from 
Prince  Edward  Island.  He  says  this  increase  has 
taken  place  within  the  last  ten  years;  but  he  does  not 
undertake  to  define  how  far  that  increase  began  before 
1866,  whether  it  continued  in  the  interval  between 
1866  and  1871,  and  how  far  it  was  resumed  after 
wards.  But  we  find  that  five  years  after  the  conclu 
sion  of  the  Washington  Treaty,  the  boat-fishing  had 
increased  one  hundred  per  cent;  and  we  know  that 
it  is  the  freedom  of  trade  in  fish  that  has  made  the 
boat-fishing  of  those  islands;  that  has  brought  about 
their  increase  in  size,  which  every  witness  has  testi- 


HALIFAX  FISHERY  COMMISSION  .421 

fied  to  who  has  been  asked  the  question.  I  do  not 
know  whether  my  learned  friends  have  asked  the 
question  or  not,  but  we  have  asked  it,  and  it  hav 
ing  been  testified  to  by  two  residents  there,  Mr. 
Hall  and  Mr.  Myrick,  and  the  counsel  for  Great  Brit 
ain,  having  had  ten  days  allowed  them  to  bring 
rebutting  testimony,  brought  none,  we  may  therefore 
consider  that  matter  as  settled,  that  their  growth 
has  been  largely  in  boat-fishing,  —  in  the  number 
of  boats,  the  number  of  men  employed,  the  quantity 
of  the  catch,  and  the  amount  of  capital  invested, 
—  and  that  an  examination  will  show  that  it  is  to 
the  freedom  of  trade  in  fish  that  they  owe  it 
entirely. 

I  will  read  a  few  words  to  your  Honors  from  Mr. 
Hall's  testimony,  who  has  had  very  large  experi 
ence,  living  —  or  if  not  living,  doing  business  — 
on  the  northern  part  of  the  bend  of  Prince  Edward 
Island. 

Then  we  have  the  testimony  of  Mr.  James  R. 
McLean  of  Souris,  P.  E.  I.,  called  by  the  other  side, 
and  coming  from  the  strongest  point  in  favor  of  com 
pensation,  that  is,  the  bend  of  the  Island. 

There  has  been  put  into  my  hands  what  may  be 
called  an  "account  stated"  on  this  subject  of  the 
balance  between  what  is  gained  by  the  Provinces 
by  the  removal  of  the  duties,  and  what  we  gain  by 
the  extension  of  our  right  to  fish.  The  principle  on 
which  it  is  made  up  is  most  unfavorable  to  us.  I  do 
not  think  it  is  a  sound  one;  but  some  persons  may. 
At  all  events,  it  is  the  most  unfavorable  to  us:  — 


422  RICHARD  HENRY  DANA,  JR. 

GREAT  BRITAIN 

To  UNITED  STATES,          Dr. 

To  saving  of  duties  on  fish  and  fish-oil  for  12 
years,  averaged  from  the  returns  of  '74,  '75, 
and  '76,  from  Appendix  O $4,340,700.00 

Cr. 

By  value  of  mackerel  caught  within  3  miles  of 
coast  for  12  years,  at  $3.75  per  barrel,  allowing 
one-third  to  have  been  taken  within  3  miles  of 
the  shore,  and  assuming  the  catch  for  each 
year  as  equal  to  that  given  in  the  Port  Mul- 
grave  returns  for  1874  (63,078^  bbls.).  .  .  $1,046,177.50 
Balance  due  United  States $3,394,522.50 

We  were  obliged  to  take  the  Port  Mulgrave  returns 
for  the  year  1874,  because,  as  your  Honors  will  recol 
lect,  nothing  could  extract  the  returns  for  1875  and 
1876  from  the  hands  of  the  British  counsel.  No  words 
of  advice,  no  supplication,  no  bended  knees,  —  no 
thing  could  get  from  them  those  returns,  so  favorable 
to  the  United  States;  and  we  took  the  returns  of  1874. 

But,  supposing  it  to  be  true  that  the  exporter  does 
not  pay  all  the  duties,  —  of  course  nobody  believes 
that  he  pays  nothing;  but  give  him  the  fairest  pos 
sible  chance,  supposing  he  pays  one-quarter,  and  the 
consumer  pays  three-quarters;  the  result  then  is  that 
against  $946,177.50  credited  to  Great  Britain,  we  put 
one-quarter  of  the  United  States  duties  remitted, 
$1,085,175,  and  it  leaves  a  balance  of  $138,997.50  in 
favor  of  the  United  States. 

So  that,  bringing  this  matter  as  far  as  statistics  can 
bring  it,  getting  the  value  of  the  fish  in  Prince  Ed 
ward  Island,  irrespective  of  the  labor  put  upon  it 
afterwards,  assuming  one-third  of  the  fish  to  be  caught 


HALIFAX  FISHERY  COMMISSION  423 

within  the  three  miles,  and  to  be  of  equal  value  with 
those  caught  outside,  which  certainly  is  not  true;  and 
supposing  that  of  the  duty  of  two  dollars  a  barrel, 
only  one-quarter  is  paid  by  the  exporter,  still  the 
balance  remains  in  favor  of  the  United  States.  If, 
gentlemen  of  the  Commission,  such  is  to  be  the  mode 
of  treating  this  subject,  by  taking  values,  and  bal 
ancing  one  against  the  other,  that  is  the  result. 

I  do  not  suppose,  myself,  it  is  possible  to  arrive  at 
any  satisfactory  result  by  any  such  close  use  of  sta 
tistics,  on  the  other  side  or  on  ours.  But  a  few  general 
principles,  a  few  general  rules  for  our  guidance,  cer 
tainly  are  to  be  found  in  all  this  testimony  and  in  all 
this  reasoning.  You  have  the  United  States  able  to  put 
on  what  duties  it  pleased.  You  have  its  actual  duties  at 
two  dollars  per  barrel,  substantially  prohibitory,  which 
everybody  said  was  prohibitory,  except  those  deeply- 
instructed  political  economists  who  came  here  with 
the  impression  that  some  good  friend  paid  the  duties 
for  them,  to  enable  them  to  get  into  market  on  equal 
terms  with  everybody  else.  That  you  have  with  cer 
tainty.  Against  that,  you  have  the  most  speculative 
opinion  in  the  world;  and  that  is  as  to  the  value  to 
us  of  a  franchise,  or  a  faculty,  or  a  privilege,  or  a 
liberty,  to  pursue  the  free-swimming  fish  of  the  ocean 
a  little  farther  than  we  ordinarily  pursue  him,  with 
every  vessel  of  ours  coming  into  competition  with 
fishermen  from  boats,  who  have  every  advantage 
over  us,  and  to  ascertain  the  value  of  that  franchise, 
privilege,  faculty,  or  whatever  you  may  call  it,  irre 
spective  of  all  the  capital  or  industry  that  must  be 
employed  in  its  exercise. 

I  came  here  with  a  belief  much  more  favorable  to 
the  English  cause,  —  I  mean,  as  to  what  amount,  if 


424  RICHARD  HENRY  DANA,  JR. 

any,  Great  Britain  should  receive,  —  than  that  with 
which  I  leave  the  case.  The  state  of  things  that  was 
developed  was  a  surprise  to  many ;  the  small  value  of 
the  extension  of  the  geographical  line  of  fishing  to  our 
vessels,  —  I  mean,  to  vessels  such  as  we  have  to  use, 
—  to  the  people  of  the  United  States,  and  the  certain 
value  that  attaches  to  the  Provinces  in  getting  rid  of 
duties,  has  given  this  subject  an  entirely  new  aspect, 
and  has  brought  my  mind  very  decidedly  to  a  certain 
opinion;  and  I  am  not  instructed  by  my  government 
to  present  any  case  that  I  do  not  believe  in,  or  to  ask 
anything  that  we  do  not  think  is  perfectly  right;  and 
the  counsel  for  the  United  States  are  of  one  opinion, 
that  when  we  ask  this  Commission  to  decide  that 
there  is  no  balance  due  to  Great  Britain,  in  our  judg 
ment,  whatever  that  judgment  may  be  worth,  it  is 
what  justice  requires  the  Commission  should  do. 

I  have  finished  what  is  my  argument  within  the 
time  which  I  intended  last  night;  but,  Mr.  President 
and  gentlemen,  I  cannot  take  leave  of  this  occasion, 
and  within  a  few  days,  as  I  must,  of  this  tribunal, 
without  a  word  more.  We  have  been  fortunate,  as 
I  have  had  the  pleasure  to  say  already,  in  all  our  cir 
cumstances.  A  vulgar  and  prejudiced  mind  might 
say  that  the  Americans  came  down  into  the  enemy's 
camp  to  try  their  case.  Why,  gentlemen,  it  could  not 
have  been  tried  more  free  from  outside  influence  in 
favor  of  Great  Britain,  had  it  been  tried  in  Switzer 
land  or  in  Germany.  This  city  and  all  its  neighbor 
hood  opened  their  arms,  their  hearts,  to  the  Ameri 
cans;  and  they  have  not,  to  our  knowledge,  uttered 
a  word  which  could  have  any  effect  against  the  free, 
and  full,  and  fair  decision  of  our  case.  We  have  had 
the  utmost  freedom.  We  have  felt  the  utmost  kindli- 


HALIFAX  FISHERY  COMMISSION  425 

ness  everywhere.  The  counsel  on  the  other  side  have 
met  us  with  a  cordiality  which  has  begun  friendships 
that,  I  trust,  will  continue  to  the  last.  I  can  say,  in 
respect  to  my  associates  in  this  case  (leaving  myself 
out),  that  America  has  no  cause  to  complain  that  her 
case  has  not  been  thoroughly  investigated  by  her 
agent  and  counsel,  and  fully  and  with  great  ability 
presented  to  the  Court;  and  I  am  certain  that  Great 
Britain  and  the  Dominion,  represented  here  by  an 
agent  from  the  Foreign  Office,  devoted  to  the  work 
before  him,  assisted  by  the  constant  presence  of  a 
member  of  the  Dominion  government,  largely  ac 
quainted  with  this  whole  subject,  and  with  five  coun 
sel,  one  from  each  Province  of  the  Dominion,  all 
capable,  all  indefatigable,  with  knowledge  and  skill, 
cannot  complain  that  they  have  not  been  fully  and 
ably  represented.  But,  after  all,  the  decision,  the 
result,  depends  upon  you  three  gentlemen  who  have 
undertaken,  two  of  you  at  the  request  of  your  respec 
tive  countries,  and  His  Excellency  at  the  request  of 
both  countries,  to  decide  this  question  between  us. 

It  has  been  said,  I  have  heard  it,  that  your  decision 
will  be  made  upon  some  general  notion  of  what,  on 
the  whole,  would  be  best  for  the  interests  of  the  two 
countries,  without  much  reference  to  the  evidence 
or  to  the  reasoning.  Mr.  President  and  gentlemen, 
we  repudiate  any  such  aspersion  upon  the  character 
of  the  Court.  We  know,  and  we  say  it  in  advance, 
not  that  we  hope  this  tribunal  will  proceed  judicially, 
and  decide  in  accordance  with  the  evidence  and  the 
weight  of  reasoning,  but  that  we  cannot  allow  our 
selves  to  doubt  it.  We  may  venture  to  congratulate 
your  Honors  and  your  Excellency  in  advance,  that 
when  this  decision  shall  have  gone  out,  whether  it 


426  RICHARD   HENRY  DANA,   JR. 

give  pleasure  or  pain  to  the  one  side  or  the  other,  the 
question  will  have  been  decided  upon  those  prin 
ciples  which  it  is  manifest  the  treaty  determined  it 
should  be  decided  upon,  not  from  some  local  or  na 
tional  view  of  policy  for  the  present  or  future;  not 
for  the  sake  of  what  some  persons  hope  may  by-and- 
by  result  in  something  better  than  the  present  treaty; 
but  that  you  will  have  confined  yourselves  to  exactly 
what  the  treaty  asks  and  empowers  you  to  do,  —  to 
determine  what  is  now  the  pecuniary  result  of  the 
contrasted  articles  of  the  treaty.  On  such  a  determi 
nation  of  the  controversy,  whatever  may  hereafter 
follow  from  it,  each  of  your  Honors  will  know  that 
you  have  been  governed  by  principle,  and  by  that 
strict  rule  of  conduct  which  alone  can  give  a  man 
peace  at  the  last. 


LETTERS  FROM  A  FATHER  TO  A  SON 


XVI 

LETTERS  FROM  A  FATHER  TO  A  SON 

NOTE  BY  THE  SON 

ONE  problem,  ever  old  and  ever  new,  taking  each  generation 
substantially  unprepared,  is  the  treatment  of  a  son  by  his 
father.  Of  course,  each  new  father  ought  to  be  prepared,  but 
rarely  is  he.  What  father,  having  brought  up  a  family  with 
boys,  has  not  wished  in  the  retrospect  to  have  corrected  mis 
takes?  A  father  who  feels  otherwise  is  pretty  surely  a  bigot  to  his 
own  past.  I  suppose  one  explanation  for  this  state  of  unpre- 
paredness  is  that  few  realize  the  real  psychological  crisis  there 
is  m  early  childhood.  Again,  the  father  is  usually  preoccupied 
~m  earning  the  support  of  his  wife  and  coming  children,  in  mak 
ing  a  home,  in  establishing  his  own  career  and  laying  the  foun 
dations  of  hoped-for  success  in  hard  work. 

Besides  that,  the  problem  is  not  a  simple  one.  It  is  many- 
sided.  A  father  who  thinks  he  has  solved  it  with  his  first  son 
finds  it  far  from  solved  when  he  applies  his  first  theory  to  a 
second  boy;  and  the  poor  father  may  have  to  doubt  all  his  the 
ories  when  he  comes  to  the  sixth  child,  if  he  be  so  happy  as  to 
have  six. 

The  old  woman  who  lived  in  the  shoe,  had,  to  be  sure,  but  one 
solution  for  all,  and  that  is  the  humor  of  the  rhyme;  but  had 
she  taken  her  multifarious  task  thoughtfully,  she  would  have 
found  that  the  forty-second,  if  that  is  the  number  with  which  her 
children  stopped,  would  have  given  her  wearied  brain  a  new  task. 

Complicated  as  the  problem  is  as  applied  to  different  boys, 
there  are  yet  some  general  principles  of  pretty  universal  appli 
cation,  which  are  only  too  often  overlooked.  Anything,  there 
fore,  that  will  aid  a  father  in  solving  such  problems  is  worth  a 
sacrifice  of  personal  feelings  and  the  exposure  of  private  failings 


430  RICHARD  HENRY  DANA,  JR. 

by  a  son  who  owes  so  much  of  what  he  is  not  and  pretty  nearly 
all  he  is,  to  the  wise  treatment  by  his  father. 

My  father's  first  four  children  were  daughters.  On  the  birth 
of  the  second,  his  journal  shows  how  he  philosophized  himself 
and  his  wife  into  a  state  of  content;  but  says,  nevertheless,  "I 
should  like  to  train  up  a  son."  As  a  preface  to  these  letters  to 
me,  I  have  decided  to  show  what  his  idea  of  "training"  was; 
and  the  more  am  I  led  to  take  this  course  by  the  fact  that  I 
have  told  several  perplexed  fathers,  who  came  to  me  for  advice, 
the  story  of  my  father's  treatment  of  me,  and  in  every  case  with 
signal  profit,  —  more  than  one  father  having  thanked  me  with 
tears  in  his  eyes  for  the  reclamation  of  his  son's  confidence  and 
affection,  brought  about  by  adopting  a  similar  course.  Also 
this  will  show  a  side  of  my  father  not  to  be  seen  in  the  Biography 
or  Speeches. 

At  the  tender  age  of  eight,  I  exhibited  traits  such  as  have  led 
many  a  boy,  less  fortunate  in  his  father,  to  the  career  of  a  criminal 
and  outcast.  At  this  time,  I  played  chiefly  with  boys  from  one 
to  two  years  older  than  myself,  and  in  justice  to  my  parents' 
care  and  forethought,  I  should  add  that  they  were  sons  of  most 
estimable  persons.  I  had  such  pride  and  delight  in  being  taken 
into  their  circle,  that  I  stood  ready  to  repay  this  mark  of  esteem 
by  utter  loyalty  to  their  wishes. 

Playing  fireman  with  a  garden  water-barrow,  such  as  was 
used  in  those  days,  for  an  engine,  we  wanted  some  sign  of  office, 
which  we  thought  should  be  sw^ords;  and  we  could  use  these 
swords  also,  in  those  ante-bellum  days,  playing  soldier,  but  for 
the  latter  purpose  we  wanted,  above  all,  a  gun.  We  found  that 
a  neighbor  had  some  brass  stair-rods  not  then  in  use,  which  we 
could  convert  into  swords,  and  also  a  shotgun,  with  powder-horn 
and  percussion-cap  box,  all  kept  in  the  L  of  his  house.  These 
we  longed  to  possess,  the  latter  for  shooting  birds  as  well  as  for 
parading  and  drilling,  to  say  nothing  of  satisfying  a  craving  to 
possess  something  so  important  and  manlike.  I  well  remem 
ber  how  it  was  suggested  that  I  should  do  the  breaking  l  and 

1  Lifting  a  latch  in  order  to  enter  by  a  door  for  an  unlawful  pur 
pose  is  "  breaking." 


LETTERS  FROM  A  FATHER  TO  A  SON   431 

entering,  and  how  flattered  I  felt  at  being  chosen  for  the  task. 
We  all  went  into  a  dense  copse  of  fir  trees  near  the  house  to  be 
looted,  and  I,  leaving  the  others  behind,  crept  forward  along  the 
ground,  under  cover  of  the  branches,  until  in  plain  sight  of  the 
L  where  the  coveted  things  were  kept.  Watching  each  window 
and  seeing  no  one  in  sight,  I  got  up  and  boldly  sauntered  along 
over  the  short  intervening  space,  lifted  the  latch,  opened  the 
door,  entered,  and  soon  came  back  with  the  brass  rods  and  some 
bright  colored  chemicals  in  glass  bottles.  These  latter  had  fasci 
nated  my  eye.  I  had  seen  Professor  Horsford  kindly  entertain 
ing  a  party  of  children  with  experiments  in  chemistry.  He 
brought  forth  wonderful  colors  from  simple  mixtures,  and  told 
of  the  marvels  that  could  be  produced  by  chemicals.  The  chem 
icals  which  had  caught  my  eye  were  not  exactly  the  same  he  had 
used,  but  they  were  as  bright  in  color,  and  brought  to  the  imagi 
nation  vague  but  exciting  possibilities  of  making  gunpowder 
perhaps,  and  of  I  hardly  know  what  else. 

Laden  with  this  booty,  I  was  praised  for  my  courage  and 
called  a  "brick."  This  stimulated  me  to  fresh  venture,  and  a 
few  days  later,  following  the  same  tactics  from  the  same  copse, 
I  returned  to  my  companions  with  the  longed-for  gun,  powder- 
horn  and  cap-box,  which  we  concealed  beneath  the  trees  until, 
under  cover  of  darkness,  we  got  them  to  the  hiding-place  in  the 
shed  of  the  house  of  a  particeps  criminis.  Some  week  or  so  later, 
we  learned  that  the  owner  was  making  inquiries  among  his 
neighbors  about  the  gun,  and  that  the  boys  of  the  vicinity,  in 
cluding  ourselves,  were  suspected.  I  took  the  powder-horn  and 
sunk  it  in  a  ditch  to  avoid  detection.  In  all  this  I  felt  no  guilt; 
there  was  an  exhilaration,  a  suppressed  excitement,  a  sense  of 
power  in  the  doing.  The  only  uncomfortable  feeling  I  then 
experienced  was  fear  of  ultimate  detection,  which,  however,  I 
thought  remote.  Of  course,  we  all  promised  not  to  betray  one 
another. 

The  hardest  trial  came  when  I  was  questioned  by  my  father, 
who  had  been  told  of  the  loss  and  the  suspicion  attaching  to  our 
"gang."  Here  I  did  feel  guilt.  My  father  had  always  trusted  me, 
and  instructed  me  to  tell  the  truth  at  all  hazard.  However, 


432  RICHARD  HENRY  DANA,  JR. 

though  I  hated  to  do  it,  though  it  gave  a  wrench  to  iny  heart 
which  I  distinctly  recall  to  this  day,  I  shielded  my  fellow  thieves 
with  so  confident  a  manner  and  so  straight  a  look  of  the  eye,  that 
my  father  did  not  doubt  my  word.  No  thought  crossed  my  mind 
of  shielding  my  confederates  by  false  accusation  of  myself,  as 
does  the  Figlia  di  lorio  of  d'Annunzio.  It  was  only  a  question  of 
standing  by  our  compact  of  secrecy,  or  telling  the  whole  truth 
in  detail.  Nor  could  I  have  succeeded  by  confessing  my  part 
alone  and  withholding  the  names  of  the  others,  as  Harry  did  in 
"Daisy  Chain."  It  was  known  who  were  my  constant  and,  at 
that  time,  only  playmates,  they  had  been  seen  with  me  near  the 
locus  and  about  the  time,  and  they  had  possession  of  most  of  the 
articles.  Soon  after,  I  forget  just  how,  my  companions  were 
found  out.  They  confessed  all,  and  I  was  brought  to  book  as 
well  as  they. 

Here  was  just  cause  for  moral  indignation.  I  had  not  only 
stolen,  but  had  lied  with  a  straight  face  to  a  trusting  and  devoted 
father.  Now,  then,  what  course  should  this  father  pursue?  On 
account  of  the  very  intensity  of  his  feelings,  he  decided  to  wait. 
He  followed  the  precept  of  the  Koran,  —  no  judge  should  settle 
a  matter  in  anger.  Some  hours  later,  he  called  me  into  his  study. 
What  he  had  been  doing  before  I  came  in  I  do  not  know,  but  I 
believe  he  had  carefully  thought  it  out,  and  I  doubt  not,  judging 
from  his  habits,  gone  on  his  very  knees  in  a  prayer  for  help  and 
strength  and  guidance,  to  be  at  his  best  in  this  crisis  of  his  boy's 
life.  When  in  his  study,  I  was  told  to  sit  down.  He  kept  on  writ 
ing  for  some  fifteen  long  minutes,  giving  me  time  for  reflection. 
Then  he  turned  from  his  upright  desk  at  which  he  had  been 
standing,  and  spoke  quietly,  slowly  and  seriously.  To  my  sur 
prise,  instead  of  fiery  wrath,  which  my  school-life  had  led  me  to 
expect,  he  began  with  some  words  of  appreciation,  saying  he  had 
observed  my  efforts  to  control  my  temper,  my  affection  for  and 
obedience  to  my  mother,  what  he  believed  to  be  my  real,  under 
lying,  good  qualities,  which,  as  he  told  them,  were  more  than  I 
had  ever  recognized  in  myself.  Then  he  spoke  of  what  he  hoped 
for  me,  his  only  boy,  the  only  grandson  of  his  father,  and  of  the 
characteristics  for  honor,  integrity  and  truth  in  my  ancestors. 


LETTERS  FROM  A  FATHER  TO  A  SON   433 

Then  he  showed  sympathy  for  my  special  temptations  in  this 
case;  how  he  understood  I  had  been  influenced  by  older  boys 
and  that  I  had  felt  obliged  to  stand  loyally  by  them.  This  was 
followed  by  calm  yet  strong  reproof,  but  of  a  kind  that  left  open 
the  door  of  hope.  He  impressed  on  me  the  seriousness  of  what 
I  had  done.  He  showed  how  it  was  my  duty  to  refuse  to  be  flat 
tered  into  wrong  by  other  boys,  how  to  show  my  pluck  and  cour 
age  by  standing  out  for  what  was  right  and  true,  and  not  by 
doing  and  standing  out  for  what  was  wrong  and  false.  Then  he 
spoke  of  his  disappointment  in  my  "falsehood"  to  him  person 
ally.  I  noticed  that  he  did  not  call  it  a  "lie,"  though  it  was  one. 
He  did  not  shelter  a  harsh  word  behind  the  proverbial  "spade." 
He  then  asked  me  to  speak  for  myself.  So  much  had  he  himself 
said  for  me  that  I  had  nothing  to  add.  I  was  reduced  to  tears  of 
contrition.  His  patience,  love,  appreciation,  over-appreciation 
of  my  good  points,  his  sympathy  and  consideration,  in  this  one 
interview,  raised  in  my  little  soul  a  reciprocal  love  and  devotion 
which  made  my  father,  from  that  day,  my  close  friend  and 
admired  confidant,  for  the  rest  of  his  life. 

This  did  not  work  at  once  a  complete  reformation,  as  I  shall 
show.  I  still  had  faults  to  overcome  and  failures  to  repent  of. 
The  next  year,  during  my  father's  absence  on  a  trip  round  the 
world,  I  got  into  a  scrape  and  suffered  a  gentle  whipping,  some 
mortification  and,  worst  of  all,  the  shame  and  regret  of  bringing 
tears  to  the  eyes  of  a  dearly  beloved  great-aunt.  Yet,  withal, 
my  father's  treatment  gave  me  a  fidelity  to  him,  a  desire  to 
please  him,  to  realize  his  hopes,  that  served  as  an  underlying 
motive  which  in  the  main  was  supreme.  To  him  at  least  I  was 
loyal,  though  far  from  fulfilling  all  his  wishes  for  me.  Judging 
from  this  experience  of  mine,  I  believe  that  many  a  lad  has  gone 
wrong,  not  from  love  of  wrong  itself,  perhaps  even  without  the 
consciousness  of  being  bad,  but  because  his  love  of  adventure, 
of  exercising  pluck,  ingenuity  and  resourcefulness,  and  his  loy 
alty  to  friends,  have  been  accidentally  determined  in  a  wrong 
direction,  perhaps  for  lack  of  higher  ideals  presented  in  a  way  to 
attract.  This  experience  of  mine  has  given  me  a  deep  interest 
in  Judge  Ben  B.  Lindsay's  successful  dealing  with  young  delin- 


434  RICHARD  HENRY  DANA,  JR. 

quents  in  Denver,  in  the  George  Junior  Republic,  in  the  methods 
of  Miss  Alice  Freeman  at  Wellesley,  and  of  Secretary  Bolles  and 
Dean  Briggs,  and  in  the  new  plan  of  students'  council  now  being 
tried  at  Harvard.  Let  me  add,  for  fear  of  being  misunderstood, 
this  "dealing"  and  these  "methods"  do  not  mean  mere  lazy  len 
iency,  but  the  inspiring  with  high  ideals,  a  task  much  more  diffi 
cult,  as  it  is  in  the  end  more  profitable,  than  punishment  alone. 
Nor  do  I  believe  that  punishment  should  always  be  omitted  in 
the  scheme  of  training  a  son. 

Though,  as  I  have  already  said,  often  whipped  at  school,  only 
once  did  father  himself  resort  to  corporal  punishment,  and  that 
chiefly,  I  believe,  that  the  sense  of  force  might  be  behind  to  help 
the  weak  endeavor.  The  circumstances  were  as  follows.  My 
parents  being  both  away  for  the  day,  my  elder  sisters  assumed 
an  authority  not  delegated  to  them  either  expressly  or  by  impli 
cation.  In  some  small  matter,  not  involving  anything  in  itself 
wrong,  I  refused  to  submit,  and  as  I  continued  to  oppose  what 
I  thought  to  be  both  unauthorized  and  unreasonable  commands, 
they  called  the  servants  to  assist.  I  was  then  just  under  nine 
years  of  age.  Finding  myself  surrounded  by  this  "  force  majeure," 
interfering  with  my  liberties,  I  rushed  to  my  father's  wardrobe, 
got  his  long  sabre  and  his  Colt's  revolver,  which  was  loaded  and 
capped,  and,  cocking  the  hammer,  I  aimed  the  pistol  at  my  ene 
mies  and  held  them  at  bay  all  the  afternoon.  As  the  daylight 
faded,  my  courage  began  to  fade  with  it.  I  wished  myself  well 
out  of  the  situation  my  pride  would  not  let  me  abandon.  I  knew 
my  father  would  soon  be  coming  home,  and  before  long  I  heard 
the  front  door  open  and  shut,  and  his  step  and  voice  in  the  hall. 
To  him  I  surrendered,  side-arms  and  all.  He  refrained  from 
words,  other  than  to  tell  me  to  take  my  supper  in  my  bed-room 
alone.  An  hour  or  two  later  he  came  up  and  talked  the  whole 
matter  over.  He  had  given  himself,  as  well  as  me,  time  for  reflec 
tion  and  calm.  We  came  to  the  conclusion  (I  say  "we,"  as  I 
was  consulted)  that  I  had  better  be  punished.  When  the  blows 
came,  they  were  real  and  hurt;  but  there  was  no  anger,  open  or 
concealed,  none  of  the  "It  hurts  me  more  than  it  does  you," 
and  no  degradation.  I  had  pleaded  guilty  and  joined  in  the 


LETTERS  FROM  A  FATHER  TO  A  SON   435 

sentence.  As  part  of  the  punishment,  I  also  apologized  to  sisters 
and  servants,  for  subjecting  them  to  fear  and  danger. 

Bringing  to  bear  sympathy  and  appreciation  in  dealing  with 
a  son  is  apparent  enough,  but  what  may  escape  the  reader's 
notice  is  the  giving  of  ample  time.  How  many  a  parent  has 
"meant  well,  tried  a  little,  and  failed  much,"  as  the  pathetic 
epitaph  near  Lakewood  reads,  because  he  has  been  too  "busy," 
forsooth,  to  give  enough  time  and  thought  to  the  most  important 
business  of  his  life.  The  faults  and  waywardness  of  a  child  are 
so  annoying,  they  come  at  such  inconvenient  times,  they  are 
such  interruptions,  they  seem  to  "pester"  one  so,  that  the  in 
stinct  is  to  brush  them  away  like  a  swarm  of  flies,  with  some 
hasty  words  uttered,  perhaps,  in  the  presence  of  others,  leading 
to  injured  pride,  self-defense,  heated  argument,  and  estrange 
ment.  What  is  needed  is  the  assignment  of  time,  at  an  appro 
priate  place  and  alone  with  the  child,  without  hurry  or  interrup 
tion,  and  as  much  thought  as  is  required,  let  us  say,  to  suppress 
ravages  of  gypsy  moths  or  to  destroy  the  breeding  places  of 
mosquitoes. 

When  nearly  ten  years  of  age,  I  had  the  great  privilege  of 
making  some  new,  delightful  friendships,  chiefly  with  Daniel  C. 
French,  now  the  famous  sculptor,  William  Brewster,  the  cele 
brated  ornithologist,  John  Nichols,  the  successful  and  upright 
man  of  business  in  New  York,  and  with  others  less  intimate, 
including  the  two  Russells,  the  late  Charles  Theodore,  lawyer 
and  Civil  Service  Commissioner,  and  Joseph  B.,  the  public- 
spirited,  high-minded  man  of  affairs. 

As  I  grew  older,  at  about  the  age  of  twelve  or  thirteen,  my 
father  told  me  those  things  a  son  can  best  learn  from  his  father, 
warning  me  against  picking  up  what  usually  amounts  to  misin 
formation  on  such  subjects  from  other  boys  on  street  corners, 
and  urging  me  to  come  to  him  or  the  family  doctor  if  and  when 
I  needed  further  knowledge,  and  otherwise  to  dismiss  such  sub 
jects  from  my  mind  by  keeping  it  busy  with  interesting  topics, 
whether  of  work  or  play.  Perhaps  such  a  course  was  all  the  more 
natural  and  easy  for  him  on  account  of  his  high  ideals  of  life. 
After  his  death,  I  met  a  close  friend  of  his,  living  in  London,  who 


436  RICHARD  HENRY  DANA,  JR. 

had  seen  him  intimately  on  every  visit  he  had  made  to  England. 
This  friend  said,  "I  wish  to  have  the  pleasure  of  telling  you  that 
your  father  was  the  whitest  soul  I  ever  met.'* 

Dr.  Hamilton  Rice,  in  a  recent  address  before  the  Harvard 
Travellers'  Club,  about  his  last  trip  among  the  savages  at  the 
source  of  the  Amazon  and  Orinoco,  spoke  of  the  good  family 
relations  of  the  natives;  and,  what  specially  thrilled  me,  was  his 
account  of  how  the  father  trained  his  son,  and  how  the  son  was 
the  companion  of  his  father  in  all  his  enterprises.  In  our  civilized 
and  complicated  life,  this  close  companionship  is  not  so  easily 
arranged.  In  our  case,  there  were  the  claims  of  two  families,  his 
father's  and  his  own,  living  in  different  places.  We  were  the  only 
two  well  men  of  both  families,  so  we  often  had  to  be  separated, 
even  in  vacation;  and  when  at  last  I  got  through  my  education 
and  started  with  him  in  the  law,  as  I  was  the  fifth  child,  he  was 
then  becoming  old  and  had  to  go  abroad  for  his  health,  after  six 
months  only  of  that  delightful  companionship  in  work.  I  cannot 
pass  over  this  companionship  in  work  without  saying  with  how 
much  deference  he,  a  man  of  his  legal  learning  and  experience, 
listened  to  every  suggestion  from  his  juniors,  including  myself,  — 
nay  more,  suggestions  he  courted. 

Out  of  his  busy  life,  he  made  opportunities  to  be  with  me  and 
his  other  children.  He  gave  time  to  repeat  poetry  to  us,  to  ex 
plain,  in  his  wonderfully  clear  way,  many  things  natural  and 
legal,  and  to  tell  interesting  and  amusing  anecdotes  at  table. 
He  contrived  to  take  a  long  walking  trip  with  me  through  the 
White  Mountains,  while  I  was  on  a  vacation  from  St.  Paul's 
School.  Sunday  afternoons  he  read  with  me.  We  conned  Hor 
ace's  Odes,  which  were  wretchedly  presented  by  my  instructor 
at  Harvard,  we  read  Milton's  "Paradise  Lost"  twice  in  full,  and 
selected  parts  oftener,  "Paradise  Regained,"  " Samson  Agonis- 
tes,"  much  of  Bacon's  "Novum  Organum,"  some  of  Coleridge's 
philosophy,  Edmund  Burke's  orations,  and  other  poetry  and 
philosophy,  interspersed  with  or  followed  by  most  illuminating 
and  delightful  talks.  We  frequently  read  the  Second  Lesson  or 
the  Gospel  for  the  day  in  the  Greek,  Latin,  or  French  testament. 
As  was  customary  with  many  men  of  his  own  time,  he  preferred 


LETTERS  FROM  A  FATHER  TO  A  SON   437 

to  re-read,  dwell  on,  and  absorb  some  of  the  best  things  in  liter 
ature  rather  than  seek  for  the  new,  or  less  good  of  the  old. 

But  Mr.  Dana's  "training  up  a  son"  was  by  no  means  an 
approach  to  coddling.  On  all  but  stormy  days,  the  children  were 
sent  out  for  a  short  run,  usually  in  the  garden,  before  breakfast. 
He  wished  his  son  to  be  manly  and  self-reliant.  One  evening  he 
found  me  reading  the  "Arabian  Nights"  into  what  were  for  me 
late  hours.  I  had  my  mind  filled  with  genii  and  Aladdin  lamps 
and  a  general  upsetting  of  the  laws  of  nature.  I  believe  I  was 
about  eight  years  old.  He  told  me  to  go  out  for  some  fresh  air  be 
fore  going  to  bed.  As  I  passed  down  the  path,  I  neared  the  high 
gate-posts.  Each  was  topped  with  a  large  white  wooden  ball. 
On  these  balls  points  of  light  glittering  through  the  foliage  came 
and  went,  or  moved  slowly  to  and  fro.  Suddenly  to  my  horror, 
instead  of  balls  of  wood,  they  seemed  heads  of  genii,  glaring  at 
me  with  flaming  eyes  and  ominous  smiles.  I  slowly  backed  to 
wards  the  front  porch,  and  then,  when  near  enough  to  be  safe, 
turned  and  ran  into  the  house.  My  father,  seeing  the  situation, 
ordered  me  to  go  out  again  and  conquer  my  excited  imagination, 
and  to  do  it  alone;  and  alone  I  walked  down  the  path,  passed  the 
posts,  which  had  then  resumed  their  tetes  de  bois  with  flickering 
light,  but  trembling  lest  the  genii  should  reappear.  I  took  a  short 
run  and  returned,  again  alone  passed  these  posts,  my  misgiving 
eyes  glancing  from  one  to  the  other,  but  I  presume  I  was  more 
self-reliant  from  conquering  my  fears,  though  I  was  mighty  glad 
to  get  back  safe  in  the  house  with  others  about  me. 

I  used  to  sleep  in  a  finished  attic  room,  leading  out  of  an  attic 
hall.  This  hall  got  its  daylight  through  glass  panels  in  the  upper 
part  of  three  doors  opening  into  three  attic  rooms,  one  of  these 
rooms  being  unfinished.  In  this  unfinished  room  was  the  gym 
nasium,  with  its  "horse,"  ladders,  side-weights,  etc.,  piles  of 
trunks,  and  open  eaves  leading  to  dim  distances  containing  for 
us,  when  young,  dim  horrors  which  even  at  ten  had  not  entirely 
disappeared  when  alone  at  night  time  or  in  my  dreams.  Mount 
ing  the  attic  stairs  bedward,  with  a  lighted  candle  in  my  hand, 
as  my  head  came  on  the  level  of  the  floor,  I  saw,  under  a  bed  in 
this  attic  hall,  a  man,  with  boots  toward  me.  Back  I  turned  and 


438  RICHARD  HENRY  DANA,  JR. 

began  to  descend,  not  too  fast  at  first;  for  fear  of  exciting  sus 
picion  and  inviting  pursuit,  I  moved  as  if  I  had  merely  forgotten 
something  and  wished  to  go  back  to  get  it,  until  I  was  on  the 
second  flight  down,  and  then  I  ran  pell-mell  into  the  dining-room 
where  the  elders  were  all  sitting  before  the  fire,  closed  the  door 
behind  me,  and  told  what  I  had  seen.  My  father  said  I  was  grow 
ing  up  to  be  a  young  man  and  must  not  yield  to  fear;  it  was  prob 
ably  imagination,  some  bundle  or  the  like  under  the  bed;  and 
back  I  was  sent  alone,  though  with  the  promise  of  support  from 
a  rear-guard  in  case  of  need. 

Well !  I  mustered  all  my  courage,  or  rather  bravado,  and  went 
back  making  more  than  usual  noise,  stepping  heavily  like  a 
grown  person.  When  my  eyes  were  level  with  the  attic  floor 
again,  I  peered  round  the  corner.  There  was  the  bed  and  the 
floor  under  it,  but  no  man  in  sight !  I  had  not  even  the  consola 
tion  of  seeing  a  bundle  or  anything  else  that  could  be  taken  for 
a  man  under  the  bed,  not  the  smallest  thing;  but  this  absence 
of  anything  was  not  altogether  reassuring.  What  had  become  of 
the  man?  As  I  passed  the  door  of  the  unfinished  attic,  with  its 
two  glaring  eyes  of  upper  glass  panels,  I  had  a  horrible  suspicion 
that  the  intruder  had  transferred  himself  into  this  unfinished 
attic,  and  might  be  watching  me  from  these  same  glass  panels; 
nor,  after  I  was  inside  my  own  room  and  had  shut  the  door,  was 
I  altogether  comfortable  at  the  two  glass  eyes  in  that  door, 
which  drew  my  attention  with  a  fatal  fascination  while  undress 
ing  and  in  bed,  until  I  fell  asleep. 

To  this  day  I  feel  sure  there  was  a  real  man  under  that  bed. 
He  must  have  been  warned  by  my  rapid  descent  of  the  lower 
stairs  and  taken  flight  while  we  were  discussing  the  matter  in 
the  dining-room.  I  do  not  think  it  can  have  been  all  imagina 
tion,  for  I  have  never  imagined  an  object  out  of  the  whole  cloth. 
There  has  always  been  at  least  a  sheet  hung  near  a  window  and 
flapping  in  the  breeze,  or  wooden  gate-post  balls  with  glittering 
points  of  light,  or  some  such  basis  of  my  boyish  fears. 

My  father  encouraged  me  to  take  all  the  ordinary,  small  risks 
of  games  and  sports  on  land  and  water  with  all  my  companions, 
and  I  had  my  full  share  of  narrow  escapes.  There  was  never, 


LETTERS  FROM  A  FATHER  TO  A  SON   439 

however,  any  suggestion  of  extra  caution  as  being  the  only  son 
and  grandson,  not  even  after  I  had  been  hauled  out  of  the 
Botanic  Garden  pond  where  I  had  been  fishing,  and  had  been 
brought  home  in  a  wheelbarrow,  dripping  wet  and  apparently 
half  drowned,  at  the  age  of  six;  nor  after  I  was  partly  stunned 
and  nearly  drowned  from  striking  my  head  on  the  bottom  of 
Glacialis,  diving  in  shallow  and  muddy  water;  nor  after  two 
serious  falls  from  high  trees;  nor  on  being  hit  by  stones  in  one 
of  the  fights  between  the  followers  of  Engine  No.  1  and  of  the 
East-Cambridge  engine;  nor  after  falling  through  thin  ice  while 
skating;  nor  after  some  narrow  escapes  at  the  great  Boston  fire, 
even  though  a  cousin  was  killed  by  a  falling  building  close  to 
where  I  had  just  been. 

The  same  cynic  may  say:  "Oh,  yes,  this  is  a  clear  case  of 
neglect  on  the  part  of  a  man  absorbed  in  politics  and  law!"  Lest 
this  may  be  thought,  let  me  quote  from  Mr.  Dana's  journal  of 
June  3,  1855,  showing  the  real  anxiety  which  he  kept  concealed 
from  his  only  son,  the  object  of  his  care.  "During  the  last  few 
weeks,  we  have  had  unusual  sickness  and  some  perils  and  deliv 
erances  in  our  household  .  .  .  the  next  day  week  .  .  .  our  dear 
boy,  the  darling  of  our  hearts,  fell  from  his  nursery  window, 
second  story,  to  the  ground,  and  although  he  was  picked  up  and 
found  to  be  in  his  senses,  conscious  and  apparently  unhurt,  yet 
for  several  days  we  were  anxious  about  him,  but  by  the  great 
mercy  and  blessing  of  God,  he  suffered  no  injury  whatever. 
There  are  two  windows  to  his  nursery  on  that  side,  one  directly 
over  the  stone  steps  to  the  cellar  and  the  other  over  the  soft 
grass.  He  fell  from  the  latter." 

He  urged  on  me  principles  of  courtesy,  nay,  chivalry,  towards 
women.  As  to  religious  instruction,  the  letters  and  parts  of 
Adams's  Life  speak  for  themselves. 

He  warned  me  against  any  aristocratic  tendency  or  reliance 
on  family  alone.  He  said,  "Do  not  be  misled  by  the  dear,  good 
women  at  Chestnut  Street"  (my  grandfather's  house);  and, 
dropping  quotation  marks,  as  I  do  not  remember  his  exact 
words,  he  continued  somewhat  as  follows.  First,  as  a  matter 
of  fact,  ours  isjiol  a  great  family,  though  he  believed  it  to  be  an 


440  RICHARD  HENRY  DANA,  JR. 

honorable  one.  The  Danas  of  Piedmont,  Italy,  if  (as  at  that  time 
herthought  likely)  we  are  descended  from  them,1  were  educated 
men,  several  having  been  professors  in  the  University  of  Turin 
in  various  generations;  but  they  were  gaotjnoble,  there  was  no 
"castle,"  and  the  town  of  Dana  at  the  family  home  was  but  a 
hamlet.  He  said  that  the  first  settler  in  this  country,  Richard 
Dana,  and  his  sons,  were  but  farmers  and  local  magistrates. 
The  others  in  the  direct  line  have,  to  be  sure,  been  Harvard 
graduates,  and  have  taken  part  in  the  struggles  for  liberty.  One 
has  been  a  delegate  to  the  Continental  Congress,  signed  the 
articles  of  confederation,  has  been  an  unaccepted  Minister  to 
Russia  during  the  Revolutionary  War,  and  was  Chief  Justice 
of  Massachusetts.  There  were  in  the  maternal  lines  also  two 
colonial  governors  and  a  signer  of  the  Declaration  of  Independ 
ence;  but  none  on  either  side  has  held  any  really  great  position. 
There  has  been  no  President  of  the  United  States,  no  Cabinet 
officer,  no  judge  of  the  Supreme  Court  at  Washington.  Fully 
half  the  people  you  meet,  said  he,  of  the  old  American  stock, 
have  as  much,  and  many  have  far  more,  to  be  proud  of.  But 
second,  and  more  important,  he  told  me,  is  the  danger  to  a 
young  man  of  relying  upon  wThat  his  ancestors  have  done  instead 
of  doing  things  himself.  In  so  far  as  high  character,  education, 
|,nd  devotion  to  country  in  one's  ancestors  may  stimulate  a 
Jfoung  man  to  imitate  their  careers  and  fear,  in  words  that  come 
from  the  very  dawn  of  poetry,  "to  bring  shame  on  the  stock 
of  the  fathers,"  these  may  well  help  him.  It  is  said,  "Blood 
tells";  but  as  far  as  that  means  anything,  it  means  that  it  tells 
in  what  the  descendants  are  and  do,  and  not  in  what  they  are 
not  and  do  not.  In  short,  a  family  good  name  is  a  blessing  or  ty 
curse,  just  as  we  use  or  abuse  it.  These  may  seem  platitudes, 
said  he.  Perhaps  they  are;  but,  in  the  words  of  the  Massachusetts 
Bill  of  Rights,  "A  frequent  recurrence  to  the  fundamental  prin 
ciples"  is  "necessary,"  and,  unfortunately,  on  this  subject,  only 
too  necessary.  So  many  Americans,  and  in  growing  numbers, 
are  turning  good  family  names  into  claims  of  superiority  and 

1  For  various  reasons,  the  theory  of  Italian  origin  is  pretty  much 
abandoned  by  the  genealogists  of  the  family. 


LETTERS  FROM  A  FATHER  TO  A  SON   441 

submitting  themselves  to  ridicule.  I  am  sure,  said  he,  you  will 
not  be  of  this  number. 

As  to  some  of  the  dangers  of  our  times,  he  taught  me  to  be 
lieve  that  science,  philosophy,  art,  literature  and  the  brother 
hood  of  man  were  the  glory  of  the  human  race ;  but  luxur^  /its 
debasement. 

So  much  for  precept;  but  how  about  example?  As  I  have  said, 
Mr.  Dana's  religious  feelings  and  opinions  are  pretty  well  ex 
pressed  in  the  Life  by  extracts  from  his  journals  and  letters,  and 
there  it  is  also  shown  how  "punctilious"  he  was  in  all  religious 
observances.  The  epithet  "punctilious"  doubtless  would  have 
offended  Mr.  Dana,  for  all  religion  had  to  him  a  real  meaning. 
It  was  a  help  and  inspiration  to  his  life,  and  there  was,  in  the 
morning,  family  prayers,  which  he  kept  up  with  few  periods  of 
omission,  and  the  grace  said  at  meals,  a  simplicity  and  natural 
ness  that  were  far  from  anything  sanctimonious  or  formal, 
which  he  ridiculed  and  abhorred.  He  attended  church  twice 
on  Sundays  in  the  earlier  years,  usually  but  once  in  the  latter 
part  of  his  life.  In  Lent  he  managed  to  give  some  time  to  weekly 
services.  Bishop  Grafton  tells  how  he,  as  a  young  man,  was 
impressed  by  Mr.  Dana's  stopping  on  his  way  to  his  office,  with 
green  bag  in  hand,  joining  in  the  morning  service  or  kneeling 
in  silent  prayer  for  a  few  moments. 

In  his  daily  contact  with  all  the  household,  he  set  us  an  ex 
ample  of  being  most  considerate,  thoughtful  of  the  domestics, 
and  to  his  wife  truly  chivalrous.  Never  have  I  heard  an  unkind 
word  to  his  wife,  none  of  the  thinly  veiled  sarcasm,  persistent 
arguing,  or  unfavorable  allusions  to  "women,"  none  of  the  pain 
ful  laying  of  grievances  before  guests,  none  of  the  funny  stories 
that  set  wives  at  a  disadvantage,  so  common,  even  among  those 
classed  as  gentlemen,  in  the  far  too  numerous  "Bickerman"  and 
"Retort"  families,  both  in  America  and  abroad. 

He  kept  up  the  romance  of  married  life  to  the  end.  Describ 
ing,  "after  nearly  a  year,"  the  return  from  the  marriage  journey, 
he  writes  in  the  journal 1 :  — 

1  The  journal  is  headed  as  follows:  "A  correct  account  of  all  such 
my  acts,  thoughts  and  feelings  as  I  am  willing  to  have  known  to  anyone 
into  whose  hands  this  may  come." 


442  RICHARD  HENRY  DANA,  JR. 

"Those  are  either  vulgar,  or  weak,  or  ill-matched  persons, 
to  whom  what  is  popularly  called  the  '  honeymoon '  is  the  envied 
part  of  married  life.  Confidence,  respect,  tenderness  and  devo 
tion  will  increase  as  life  goes  on,  if  there  is  ground  to  rest  such 
sentiments  upon,  and  capability  of  feeling  them  in  each  of  the 
persons  united.  A  true  man  and  woman  may  be  and  sometimes 
are  always  lovers.  The  deference,  tenderness,  respect  and  the 
romantic  and  chivalrous  devotion  need  never  fade  away.  They 
never  will  between  two  persons  really  capable  of  feeling  them 
and  calling  them  out." 

On  the  birth  of  their  first  child,  he  enters  in  his  journal,  June 
12th,  1842:- 

"If  ever  man  had  reason  to  bless  God  with  his  whole  heart, 
it  is  I.  He  has  given  me  the  best,  the  most  tender,  affectionate 
and  faithful,  as  well  as  superior  and  charming  wife  that  man  ever 
had.  Her  life  is  spared,  and  He  has  added  to  us  a  daughter." 

At  the  end  of  the  first  year,  is  found  this  journal  entry :  — 

"S.  and  I  are  no  less  lovers  than  a  year  ago.  This  is  the  true 
happiness  of  married  life,  when  the  fervor,  the  deferential  ad 
dress,  and  the  sentiment  and  romance  of  courtship  are  not  worn 
away.  They  never  need  be." 

Five  months  later,  we  find :  — 

"Great  reason  for  thankfulness.  Carried  over  land  and  water 
.  .  .  and  at  last  finding  my  dear  home  and  its  dearer  inmates 
well  and  happy." 

Nearly  two  years  after  marriage,  when  his  wife  walked  alone 
out  to  Cambridge,  to  render  what  sympathy  and  help  she  could 
on  the  sudden  death  of  Mr.  Washington  Allston,  is  this  to  be 
found  in  the  journal :  — 

"She  never  looked  more  lovely  to  me  than  when  she  entered 
that  room." 

Soon  after,  he  writes  in  the  journal :  — 

"How  vulgar  and  false  is  the  notion  that  love  —  romantic 
and  sentimental  love  —  ceases  with  marriage:"  and  then  follows 
more  in  the  same  vein  as  what  I  have  quoted  above. 

Journeying  to  Hartford,  Connecticut,  he  says :  — 

"The  sail  up  the  river  in  the  boat  was  most  delightful.   The 


LETTERS  FROM  A  FATHER  TO  A  SON   443 

site  of  Hartford,  as  viewed  from  the  river  alone,  is  quite  pictur 
esque  ...  it  has  become  a  dear  place  to  me.  S.  fills  it  to  my 
mind.  Everything  about  it  is  significant  of  her.  Here  she  first 
saw  the  light  .  .  .  here  we  first  united  our  love  and  hopes,  and 
here  we  were  united  in  marriage." 

Hearing  praise  of  his  wife's  intonation  of  voice,  "the  feeling- 
ness  of  it,"  also  "her  manners,  the  grace  she  showed  in  little 
things,  her  taste  in  dress,"  etc.,  he  adds:  "How  much  all  this 
delighted  me.  It  was  music  to  my  ear  and  my  soul." 

So  it  goes  on  in  the  second  volume  of  the  journal.  In  August, 
1843,  returning  from  a  short  summer  vacation,  his  wife  and 
daughter  being  still  away,  he  writes:  — 

"Was  glad  to  enter  my  home  and  see  the  places  made  dear  to 
me  by  so  many  months  of  happiness  and  sanctified  by  the  rela 
tions  of  husband  and  father.  Dear  S.,  how  you  do  throw  a  charm 
about  all  that  you  move  in !  Yet  it  was  solitary  and  somewhat 
sad." 

And  again:  — 

"Mrs.  Fox  sat  down  and  cried  when  Mrs.  Dana  did  not  come. 
Rarely  is  it  that  the  head  of  a  house  attaches  a  domestic  so  to 
her  that  she  will  cry  when  she  does  not  return.  'So  gentle,  so 
lovely,  so  faithful,  so  kind!" 

The  next  year :  — 

"Hartford  is  full  of  her  to  me.  .  .  .  It  is  a  peculiar,  almost  an 
enchanted  place." 

Four  years  after  marriage,  we  again  find  expressions  of  deep 
sentiment. 

At  the  end  of  a  four  weeks'  journey  with  his  wife  to  Niagara, 
Canandaigua,  etc.,  nearly  six  years  after  marriage,  is  this:  — 

"During  the  last  four  weeks  we  have  been  constantly  to 
gether.  .  .  .  We  have  agreed  that  we  have  only  to  be  always 
together  to  make  our  sentiment  perfect." 

At  the  end  of  six  years  of  married  life,  after  reading  their  let 
ters  written  "when  we  were  merely  friends," 

"We  can  truly  say  that  time  works  no  change  in  us.  Our  love 
is  as  deep  (more  deep),  as  romantic,  as  anxious,  as  sentimental 
as  on  those  days  when  romantic  love  too  often  ends." 


444  RICHARD  HENRY  DANA,  JR. 

Then,  after  seven  years :  — 

"Dear,  dear  Hartford.  .  .  .  Write  letter  to  S.  which  takes 
until  past  midnight,  and  then  put  it  in  the  office  that  she  may 
get  it  the  next  day.  .  .  .  How  my  heart  is  locked  up  with  hers." 

At  the  end  of  eight  years,  in  the  third  volume:  — 

"Reached  Wethersfield  at  4J/2,  Sarah  looking  finely  and  the 
children  all  well !  How  much  happiness,  how  many  things  to  tell, 
how  many  warm  friends  to  sympathize  in  them  all!" 

And  so  it  goes  on  until  the  journals  end;  and  the  sentiment 
and  the  tender  care  do  not  end  with  the  journals,  but  keep  up, 
even  through  years  of  his  wife's  nervous  prostration  and  illness, 
from  which  she  fortunately  recovered,  and  to  the  last  day  of  his 
life. 

His  tender  thoughtfulness  of  others  is  perhaps  best  told  in  Mr. 
Adams's  Biography,  in  an  extract  from  his  journal,  showing  how, 
after  having  started  on  a  journey  to  visit  his  wife  at  Wethersfield, 
he  got  out  of  the  cars  at  "Framingham,"  took  a  train  back  to 
Boston  and  went  out  to  Cambridge,  thus  delaying  his  journey 
two  whole  days,  including  a  Sunday  (there  were  no  Sunday 
trains  then),  because  he  feared  to  disappoint  his  little  daughter, 
who  had  expected  to  go  with  him,  but  who,  by  some  mistake  of 
the  maid,  had  not  had  her  things  packed  and  been  made  ready 
in  time  to  join  him.  On  another  occasion,  at  the  death  of  his 
cousin's  son,  a  promising  lad  of  seven,  he  sat  at  the  deathbed  for 
the  hour  together,  to  comfort  and  console  the  bereaved  father. 

As  to  his  sense  of  fun,  and  how  he  enlivened  the  family  with 
anecdotes  and  witty  stories,  I  may  say  these  stories  and  anec 
dotes  were  never  vulgar  nor  profane.  He  sometimes  made  fun 
of  sanctimonious  people,  even  of  well-meaning  clergymen  or  a 
pompous  bishop;  but  he  never  permitted  jokes  on  the  Bible. 
All  his  stories  would  bear  repetition  before  the  highest-minded. 
He  was  once,  I  remember,  immensely  annoyed  by  finding  that 
some  one  had  turned  one  of  his  anecdotes  in  a  way  to  make  it 
coarse,  and  had  added  some  indecent  touches  not  in  the  original, 
and,  moreover,  had  told  it  as  one  of  "Dana's  stories." 

As  to  his  views  on  aristocratic  tendencies  which  I  have  related, 
it  may  be  asked  how  he  carried  these  views  out  in  practice.  Some 


LETTERS  FROM  A  FATHER  TO  A  SON   445 

of  my  father's  friends  believed  him,  at  times  at  least,  to  have  had 
such  tendencies.  Butler  made  a  great  point  of  the  "kid  gloves" 
in  Mr.  Dana's  campaign  against  him  in  1868.  Perhaps  my 
father's  nearsightedness,  his  inability  to  recognize  faces  readily, 
a  certain  dignity  of  carriage  that  made  him  seem  taller  than  he 
was,  his  high  ideals  of  professional  life,  and  his  not  infrequent 
absorption  in  i&ouglif  may  account  for  part  of  this  belief;  but 
in  act  as  well  as  in  precept,  there  was  at  least  much  of  the  direct 
opposite  in  him.  Witness  his  comradeship  with  the  sailors  in 
his  two  years  before  the  ^mast,  his  interest  in  them  afterwards, 
even  going  down  to  Ann  Street  to  look  up  his  shipmate,  Tom 
Harris,  when  he  heard  he  had  come  to  town,  and  not  waiting 
for  Tom  Harris  to  call  on  him;  his  attending  at  the  deathbed  of 
a  former  fellow  sailor  though  the  poor  life  had  been  run  out  in 
dissipation;  his  attachment  for  the  poor  Kanakas  at  the  hide- 
homes  at  San  Diego;  his  real  affection  for  "Hope"  who  called 
him  his  "Aikane";  his  sitting  up  hours  of  the  night,  time  and 
time  again,  at  the  "Oven"  with  "Hope"  when  ill,  and  the 
struggles  he  had  in  getting  the  needed  medicine  which  saved 
"Hope's"  life;  and  how  we  find  Dana  inquiring  years  afterward 
about  "Hope"  from  a  sailor  who  was  returning  from  California, 
and  his  expression  of  delight  in  his  journal  at  getting  a  message 
from  his  dear  Kanaka.  Then  there  was  Dana's  offer  to  escort, 
"arm  in  arm,"  his  client,  Burns,  the  fugitive  slave,  on  the  walk 
from  the  Court  House  to  the  United  States  cutter  that  was  to 
take  him  back  to  Virginia.  As  to  the  "kid  gloves,"  taking  this 
literally,  few  men  of  his  means  dressed  so  simply  or  cared  so 
little  for  such  things. 

When  I  was  going  abroad,  with  many  letters  of  introduction, 
my  father  warned  me  against  the  idle,  fast  set  in  society,  drawing 
a  clear  distinction  based  upon  character  and  achievement.  In 
his  journals,  letters  and  conversation,  it  is  clear  that  he  very 
much  appreciated  the  sort  of  courtesy,  consideration  and  public 
spirit  one  sometimes  finds  in  the  old  families,  North  and  South, 
at  home  and  abroad.  So  far  as  an  aristocratic  tendency  meant  a 
worship  of  old  families  as  such,  Mr.  Dana  had  none  of  it.  In  his 
journal,  I  find  this  entry :  — 


446  RICHARD  HENRY  DANA,  JR. 

"Saratoga,  July  23,  1850.  ...  In  p.  M.  long  conversation 
with  Sedgwick  [Theodore]  and  Slidell  [John] J  about  their  com 
bination  of  social  exclusiveness  with  political  radicalism." 

His  interest  in  all  the  affairs  of  his  children  was  intense.  In 
the  midst  of  hard  and  exciting  professional  and  political  work, 
he  would  ask  about  his  daughters'  partners  at  the  dance,  or 
would  remember  and  inquire  about  some  of  their  classmates, 
especially  the  talented  ones,  what  marks  they  received,  what 
bright  things  they  said. 

He  was  a  man  of  sweet  disposition.  I  have  never  seen  my 
father  lose  his  temper.  I  have  heard  him  express  great  moral 
indignation  at  what  seemed  to  him  mean  or  selfish;  but  in  the 
family,  he  had  a  certain  humility  which  was  striking  when  one 
considers  the  courage  and  persistency  with  which  he  fought  his 
cases  in  court  and  took  up  and  urged  unpopular  public  causes. 
If  corrected  (and  I  suppose  every  large  family  has  its  mentor), 
he  would  submit  most  graciously,  even  on  subjects  on  which 
he  had  a  right  to  pride  himself  for  his  knowledge,  as,  for  example, 
in  rhetoric.  I  remember  my  father's  telling  me,  some  few  years 
after  his  experience  as  a  member  of  the  Massachusetts  Legis 
lature,  as  we  were  walking  past  the  State  House,  that  he  feared 
he  sometimes  lacked  charity.  He  believed  he  had  it  for  children 
and  for  the  weak  and  unfortunate;  but  that  the  motives  that 
governed  many  successful  members  of  the  Legislature,  or  by 
which  they  governed  others,  were  so  small  and  sordid,  that  he 
often  showed  his  disgust  or  indignation  in  a  way  that  was  cer 
tainly  not  politic  (for  that  he  cared  little  if  his  duty  was  clear). 
He  feared  he  had  sometimes  weakened  his  legitimate  influence, 
and  perhaps,  after  all,  said  he,  "it  was  not  altogether  Christian." 
He  said,  in  substance,  that  many  of  these  men  meant  well,  but 
had  been  brought  up  to  low  ideals  of  politics.  As  things  were, 
they  found  that  through  "log-rolling,"  trading  of  appointments 
and  the  like,  were  the  chief  roads  to  success,  and  that  along  these 
roads  were  travelling  some  of  the  very  men  they  had  been  taught 
to  admire. 

1  Of  New  Orleans;  well  known  in  connection  with  the  mission  of 
Mason  and  Slidell  in  the  Trent  affair  in  1861. 


LETTERS  FROM  A  FATHER  TO  A  SON   447 

A  relative  of  my  mother's,  a  woman  of  much  discrimination, 
once  said  to  me,  "On  my  first  visit  at  your  father's  house,  I  was 
deeply  impressed  with  his  intellect;  making  a  second  visit,  his 
courtesy  was  what  struck  me  most;  and  on  the  third,  as  I  had 
come  to  feel  the  deeper  things  of  life,  I  valued  most  the  religious 
side  of  his  character." 

Such  were  some  of  the  methods,  both  in  precept  and  practice, 
with  which  he  tried  to  "  train  up  a  son." 

As  to  my  bad  spelling,  so  often  referred  to  in  these  letters,  and 
which  caused  my  father  so  much  trouble,  I  may  say  that  it  was 
not  the  fault  of  the  public  schools  which  I  attended,  where  drill 
in  spelling  was  most  thorough,  nor  was  it  caused  by  my  neglect, 
for  I  stood  occasionally  at,  and  never  very  far  from,  the  head 
of  the  class. 

Finally,  may  I  ask  the  reader  to  note,  as  he  sees  the  following 
letters,  the  kindness  with  which  rebuke  is  administered,  the  fair 
ness,  the  want  of vexaggeration  of  faults,  the  readiness  to  admit 
he  was  in  error,  the  encouragement,  the  appreciation  and  the 
praise  and  the  personal  interest  that  they  manifest. 

Indeed,  there  is  so  much  of  appreciation  and  praise  in  these 
letters  that  I  should  never  dare  to  be  the  one  to  give  them  to  the 
public,  were  it  not  that  I  trust  every  considerate  reader  will 
remember  my  point  of  view,  namely,  to  show  a  father's  training 
of  a  son.  This  has  led  me  to  run  the  risk  of  being  criticised  for 
publishing  so  much  in  praise  of  myself;  —  remember,  I  am  show 
ing  a  father's  lovejmd  cheer. 

What  I  have  painted,  I  have  painted  not  to  the  eye  alone, 
but  to  the  inward  vision. 

R.  H.  D. 


448  RICHARD  HENRY  DANA,  JR. 


THE  LETTERS 

SHAKESPEARE'S  HOUSE 
STRATFORD  UPON  AVON,  Aug.  8, 1856. 
MY  DEAR   LITTLE   RlCHARD,  - 

You  are  too  young  [five  years  old]  to  value  it  now; 
but,  if  God  spares  your  precious  life,  you  may,  one 
of  these  days,  look  back  with  pleasure  upon  a  letter 
addressed  to  you,  by  your  father,  from  the  very 
house  in  which  the  great  Shakespeare  was  born. 
Your  affectionate  father, 

RICHD  H.  DANA,  JR. 
MASTER  RICHD  H.  DANA,  THE  SRD. 

Sunday  evening  [1865]. 
DEAR  RICHARD,  - 

I  want  you  to  return  my  list  of  misspelt  words,  cor 
rected.  I  also  enclose  one  now,  for  you  to  correct. 

Dear  R.,  I  wish  you  to  take  more  pains  with  your 
letters.  They  are  very  good  in  their  matter  and  sub 
stance,  but  you  are  not  only  very  careless  in  spelling, 
but  in  beginning  sentences  with  capitals  and  in  mak 
ing  sentences  in  any  way.  You  are  now  fourteen 
years  old,  and  should  be  able  to  write  a  letter  which 
can  be  shown  to  anyone. 

Write  slowly,  and  correct  your  own  errors. 
Good-bye,  my  dear  son. 

Your  affectionate  father, 

R.  H.  DANA,  JR. 

CAMBRIDGE,  Sept.  10,  1865. 
MY  DEAR  BOY,  — 

I  am  answering  your  letter  to  your  mother,  which 


LETTERS  FROM  A  FATHER  TO  A  SON   449 

I  was  glad  to  find  you  wrote  to  her,  at  once,  on  reach 
ing  school.  .  .  . 

We  did  have  a  pleasant  time,  those  days  of  walking, 
did  we  not?  And  the  scenery  was  so  grand,  and  the 
curiosities  so  interesting,  —  the  Pool,  Flume,  Profile, 
Basin,  Profile  Lake,  and  Echo  Lake.  I  hope  you  will 
long  remember  them. 

I  do  all  I  can  afford  to  do  to  improve  your  health  of 
body  and  your  powers  of  mind.  On  your  part,  you 
must  make  return  by  attention  to  your  studies  and 
conduct,  to  make  yourself  a  virtuous  and  well-edu 
cated  boy.  I  shall  look  anxiously  to  your  monthly 
report,  to  see  how  you  stand  in  deportment  as  well  as 
in  studies. 

The  thing  you  have  most  to  guard  against  is  vio 
lent  and  pettish  outbreaks  of  temper. 

...  At  Mr.  V.  R.'s  [P.  S.  Van  Rensselaer's],  I 
spent  four  days  very  pleasantly.  They  have  a  beau 
tiful  place,  maintained  with  a  good  deal  of  wealth 
and  style. 

My  kind  regards  to  Dr.  Coit  and  his  brother,  and 
to  the  other  gentlemen. 

Write  often  to  us,  but  pray  take  more  care  with 
your  letters.  Spell  them  better,  and  write  a  better 
hand.  Good-bye, 

Your  affectionate  father, 

R.  H.  DANA,  JR. 

RICHMOND,  VA.,  Oct.  1,  1865. 
MY  DEAR  BOY,  — 

I  suppose  you  did  not  know  of  my  purpose  of 
visiting  Virginia,  until  I  had  sailed.  The  cold  I  had 
during  our  walk  held  on  so  that  I  was  obliged  to  get 
a  vacation.  I  sailed  from  Boston,  Sept.  23  (Saturday), 


450  RICHARD  HENRY  DANA,  JR. 

in  a  steamer,  and  arrived  at  Norfolk,  Va.,  Tuesday, 
26th. 

I  saw  Fortress  Monroe,  the  Rip-Raps,  Newport 
News,  the  place  where  the  Rebel1  ironclad  Merri- 
mack  sank  our  wooden  frigates  Cumberland  and 
Congress,  and  she  was  attacked  and  driven  off  by  the 
little  Monitor. 

At  Norfolk,  I  visited  the  Navy  Yard,  which  is 
almost  entirely  in  ruins,  and  where  are  wrecks  of  our 
ships-of-the-line  Pennsylvania,  Columbus,  and  Dela 
ware,  and  our  old  frigate  United  States.  All  these 
wrecks  are  to  be  restored. 

All  the  waters  from  Norfolk  to  Fortress  Monroe 
are  one  large  harbor,  or  roadstead,  —  making  one 
of  the  grandest  in  the  world.  With  free  labor  and  free 
institutions,  Virginia  will  become  a  great  state.2 

From  Norfolk  I  went  to  Richmond,  up  the  James, 
in  a  steamer.  I  passed  Jamestown,  the  oldest  settle 
ment  in  the  United  States,  but  long  ago  abandoned, 
and  now  marked  by  a  ruin  of  a  church.3  I  passed, 
also,  the  points  of  military  interest  in  McClellan's 
campaign  of  1862,  and  Grant's  of  1864-5,  —  Malvern 
Hill,  Drury's  Bluff,  Dutch  Gap,  Deep  Bottom,  Ber 
muda  Hundred,  Harrison's  Landing,  City  Point,  etc. 

Richmond  has  a  commanding  and  beautiful  situ 
ation,  at  the  falls  of  the  James,  on  seven  hills,  and 
is  a  handsome  city.  .  .  . 

1  Not  believing  the  states  had  a  constitutional  right  to  secede,  their 
action  could  be  considered  only  in  the  light  of  a  "rebellion,"  and  to  be 
justified  only  in  case  there  was  good  cause  and  ultimate  success,  as  with 
the  rebellion  of  our  colonies  against  Great  Britain. 

2  Census  reports  on  growth  in  population  and  wealth  of  Virginia 
have  now  fully  substantiated  this  prediction. 

3  Restored  in  1907. 


LETTERS  FROM  A  FATHER  TO  A  SON   451 

I  took  a  letter  from  the  Secretary  of  War  to  Gen 
eral  Terry,  (the  capturer  of  Fort  Fisher),  now  com 
manding  the  Department  of  Virginia,  and  he  sent 
his  Chief  of  Staff  out  with  me,  and  I  visited  the  works 
of  the  Rebels  and  of  our  own  troops  around  Richmond, 
and  some  of  the  battle-grounds,  —  Newmarket,  Deep 
Bottom,  Flussel's  Mill,  Derby  town  Road,  etc.,  etc. 
I  should  like  to  give  you  a  full  description  of  the  way 
the  forts,  bastions,  bomb-proofs,  picket  lines,  etc., 
are  built,  and  the  huts  of  the  soldiers. 

I  next  went  to  Petersburg,  where  the  great  fighting 
was  done,  and  the  closest  siege,  the  capture  of  which 
caused  the  evacuation  of  Richmond.  The  works  here 
were  close  together,  in  some  places  the  picket  lines 
not  over  one  hundred  feet  apart.  I  saw  here  all  the 
chief  places  of  historic  interest. 

In  Richmond,  I  saw  the  deserted  halls  of  the  Rebel 
Congress,  looking  forlorn  enough.  General  Terry 
occupies  Jeff  Davis's  Presidential  Mansion. 

The  sight  of  all  these  things  makes  me  deeply 
grateful  for  the  success  of  our  arms  in  this  dreadful 
struggle. 

At  Christmas  I  will  show  you  the  plans,  and  ex 
plain  more  to  you.  In  the  mean  time,  go  on  with  your 
good  resolutions  and  good  conduct,  and  be  sure  of 
the  affection  of  your  father. 

R.  H.  DANA,  JR. 


CAMBRIDGE,  Oct.  25,  1865. 
MY  DEAR  BOY,  - 

Let  me  congratulate  you.   Your  last  letter  to  me 
had  not  one  error  in  spelling,  and  was  carefully  writ- 


452  RICHARD  HENRY   DANA,  JR. 

ten.  It  gives  me  great  pleasure  to  see  you  take  such 
pains. 

I  did  not  mean  that  you  should  write  oftener,  for 
I  know  you  have  but  little  time.  I  only  meant  that 
when  you  wrote,  you  should  take  pains.  .  .  . 

You  were  right  about  the  corrections.  They  were 
in  a  letter  that  came  while  I  was  at  Richmond,  and 
I  had  not  seen  them. 

I  am  glad  you  told  me  about  the  Isthmian  badge. 
I  allow  for  those  accidents  and  embarrassments  boys 
sometimes  get  into  about  paying  and  subscribing. 
So  long  as  you  make  it  understood  that  you  are 
neither  afraid  nor  ashamed  to  be  poor,  and  to  deny 
yourself  or  refuse  what  many  others  may  do,  and  tell 
me  frankly  when  you  doubt  about  what  you  have 
done,  or  when  you  have  got  into  an  expense  without 
intending  it,  I  shall  be  satisfied. 

I  enclose  your  report  for  September.  It  is  very  good 

indeed.    Go  on  so;  I  shall  not  ask  whether  you  are 

first,  second,  or  third.   That  is  relative.   I  wish  to  see 

you  9,1  but  ought  to  wish  every  other  boy  was  9  also. 

Good-bye. 

Your  affectionate  father, 

RICH  H.  DANA,  JR. 


Nov.  1,  1865. 

MY  DEAR  BOY,  — 

I  enclosed  the  pickers  for  your  sled. 
Your  letter  of  Sunday  gave  us  great  pleasure.   We 
are  rejoiced  to  find  that  you  have  joined  the  Confirma- 

1  Highest  mark. 


LETTERS  FROM  A  FATHER  TO  A  SON   453 

tion  Class.  If  you  go  on  now,  and  form  religious 
habits,  at  this  critical  and  turning  point  of  your  life, 
you  may  pass  through  the  temptations  and  trials  of 
youth  with  a  pure  life,  a  good  Conscience,  a  sound 
body,  a  well-improved  mind,  and  with  the  favor  of 
God  and  men.  If  you  do  not  do  it  now,  the  chances 
are  greatly  against  a  youth's  ever  becoming  religious. 
He  is  then  left  to  all  the  worst  influences  of  the  world, 
without  the  aid  of  God's  grace. 

Your  last  letter  had  but  one  mistake.    You  spelt 
amount  with  two  ra's. 

Your  affectionate  father, 

R.  H.  DANA,  JR. 


CAMBRIDGE,  Nov.  12,  1865. 
MY  DEAR  BOY, - 

Your  last  letter  was  carefully  written,  in  a  good 
hand,  which  I  am  very  glad  to  see.  I  am  glad  you 
persevere  in  writing  carefully.  You  have  but  one  bad 
error  in  spelling. 

I  have  not  yet  received  your  report  for  October. 
It  gives  me  pleasure  to  know  that  you  like  Latin. 
I  wish  to  see  you  a  good  Latin  scholar. 

Your  box  of  tools  came  safely  and  is  in  the  attic. 

Dr.  Coit  spoke  kindly  and  favorably  of  you.  He 
says  he  never  urges  or  presses  boys  to  be  confirmed, 
and  never  makes  a  difference  in  favor  of  communi 
cants  over  others,  in  the  way  of  favors  or  kindness,  — 
for  there  must  be  no  premium  offered.  A  boy  must 
be  confirmed  on  conviction,  and  deliberately,  so  that 
it  may  last  and  take  deep  root.  He  was  the  more 


454  RICHARD  HENRY   DANA,  JR. 

pleased  to  see  you  interested  in  the  subject,  as  it  was 
purely  voluntary. 

You  remember  Mr.  Worcester,  that  old  gentleman 
who  lived  next  to  Mr.  Longfellow,  by  the  pond.  He 
died  last  week,  and  was  buried  from  the  Church.  He 
was  eighty-one  years  old,  and  was  distinguished  for 
his  great  Dictionary  and  small  books  on  history 
and  geography. 

Good-bye. 

Your  affectionate  father, 

R.  H.  DANA,  JR. 

The  late  elections  have  all  gone  in  favor  of  the 
Republicans.  The  half -loyal  Democrats  are  thor 
oughly  put  down  by  the  people. 


CAMBRIDGE,  Nov.  19, 1865. 
MY  DEAR  SON,  — 

I  enclose  your  report  for  October.  It  is  all  good 
except  the  elocution.  Is  the  elocution  low  because 
you  forget  the  words,  or  because  you  do  not  speak 
well?  Let  me  know.  I  must  try  to  help  you  when  you 
come  home. 

...  I  had  to  deliver  a  lecture  at  Gloucester.  I 
have  a  lecture  which  I  deliver  this  year  on  "American 
Loyalty." 

.  .  .  When  you  come  home  to  Christmas,  perhaps 
we  can  let  you  go  to  a  grand  oratorio,  like  the  Mes 
siah.  It  will  give  you  new  ideas  of  music,  —  its 
majesty  and  power. 

We  shall  all  be  glad  enough  to  see  you,  when  you 
come  for  vacation.  I  hope  to  see  you  improving  in 


LETTERS  FROM  A  FATHER  TO  A  SON   455 

all  that  goes  to  make  the  good,  conscientious,  kind, 
and  intelligent  man. 

Your  affectionate  father, 

R.  H.  DANA,  JR. 

Sunday  evening,  Feb.  18,  1866. 
DEAR  RICHARD,  - 

No  one  has  written  you  this  week,  so  I  write  you, 
that  you  need  not  think  yourself  neglected. 

I  was  glad  to  see  you  go  off  in  good  heart,  and  to 
hear  that  you  got  back  in  good  order,  without  loss, 
and  were  returned  to  your  work  encouraged  as  to 
your  studies.  Especially  do  we  take  comfort  in  the 
thought  and  time  you  give  to  religion,  and  the  efforts 
you  make  to  lead  a  moral  and  upright  life.  That  is 
the  only  thing  to  be  depended  upon.  Everything 
else  may  fail.  Friends  may  —  and  will  —  die,  money 
take  wings,  health  fail,  but  the  favor  of  God  and  con 
sciousness  of  honest  efforts  to  do  right  will  give  a  man 
peace  at  the  last. 

Your  grandfather  [R.  H.  Dana,  Sr.]  has  been  very 
much  depressed  by  Aunt  Sarah's  death,  and  has 
suffered  from  a  heavy  cold,  so  that  we  all  felt  anxious 
lest  he  should  be  called  to  follow  her.  But  he  has  been 
steadily  improving  for  the  last  three  or  four  days,  and 
we  all  feel  encouraged  about  him.  Aunt  Betsey 
appears  beautifully.  She  is  so  tranquil,  and  so  re 
signed,  and  so  full  of  hope  and  religious  trust,  that 
it  is  consoling  to  see  her  and  talk  with  her.  She  has 
been  a  truly  self-sacrificing  and  devoted  woman  all 
her  days.  She  has  done  everything  for  me  and  Aunt 
C.  and  Uncle  E.1  from  our  childhood. 

1  My  father's  sister  and  brother. 


456  RICHARD   HENRY  DANA,  JR. 

One  of  your  sisters,  in  turn,  stays  in  Chestnut 
Street. 

Mamma  sends  her  best  love,  the  others  are  away  or 
abed. 

Professor  Child  has  been  here,  and  inquired  with 
interest  for  you.  You  did  not  send  back  the  last 
corrigenda. 

Good-bye,  my  dear  boy. 

Your  affectionate  father, 

R.  H.  DANA,  JR. 

Feb.  26,  1866. 

MY  DEAR  SON,  — 

I  write  a  word  to  tell  you  that  your  mother  has 
just  learned  that  you  have  given  away  your  birds' 
eggs.  She  did  not  know  it  until  yesterday,  and  it  has 
given  her  great  distress.  She  says  she  has  associated 
you  with  that  collection,  and  [cannot]  bear  to  have 
it  go  away.  She  shed  a  great  many  tears  over  it,  and 
said  that  if  you  should  die,  or  leave  her,  she  should 
always  want  them  to  remember  you  by.  You  recol 
lect,  too,  she  did  a  good  deal  to  help  you  get  some  of 
them.  It  was  generous  in  you  to  give  them  to  your 
friend;  but  I  did  not  think  at  the  time  —  as  you  did 
not  —  of  her  attachment  to  them.  I  could  comfort 
[her]  only  by  promising  to  write  to  you  and  ask  you 
whether  you  cannot  properly  get  them  back.  Willy 
Brewster  [the  ornithologist]  is  a  generous  boy,  and 
will  understand  that  you  are  not  recalling  your  own 
gift,  on  your  own  account.  You  might  send  him  this 
letter,  if  you  thought  best,  and  ask  him  to  keep  your 
eggs  separate  until  you  come  back  in  the  summer. 

Think  about  this,  and  let  me  know  how  you  feel 
about  it.  The  truth  is,  it  would  have  been  better  if 


LETTERS  FROM  A  FATHER  TO  A  SON       457 

you  had  asked  your  mother's  consent,  but  neither 
of  us  thought  of  it. 

Your  affectionate  father, 

R.  H.  DANA,  JR. 

CAMBRIDGE,  March  25,  1866. 
MY  DEAR  SON,  — 

You  wrote  me  an  excellent  letter.  It  gave  me  and 
your  mother  great  comfort.  I  know  it  is  hard  to  say 
in  a  letter  all  one  feels  on  sacred  or  delicate  subjects; 
yet  you  made  us  understand  that  you  are  thinking 
and  feeling  seriously  on  the  great  subject  of  religion. 

I  wish  I  had  had,  when  a  boy  of  your  age,  the  teach 
ings  and  exercises  of  the  Church.  But  our  family 
were  then  all  Congregationalists  and  held  certain 
views  of  God  and  religion  known  as  Calvinism,  which 
were  very  repulsive  and  hard.  And  we  young  people 
took  no  interest  in  the  Church.  There  were  no  inter 
esting  services,  —  no  Easter,  no  Lent,  no  Good  Fri 
day,  no  liturgy.  You  have  great  privileges  in  all 
these  respects,  and  religion,  though  made  serious, 
as  it  ought  to  be,  is  not  austere  and  repulsive. 

I  hope  Dr.  Coit  will  think  you  ready  for  confirma 
tion.  Yet  we  submit  it  all  to  his  better  judgment. 

You  must  not  be  discouraged  when  you  fail  in  your 
attempts  to  do  God's  will.  Recollect,  God  does  not 
look  so  much  at  what  you  do  as  at  what  you  really 
try  to  do.  The  best  service  is  imperfect  in  His  sight. 
But  He  blesses  the  endeavor. 

Your  February  report  is  very  good,  and  so  is  your 
examination.  They  are  both  most  encouraging. 

We  are  all  well.  I  gave  your  love  to  them  all. 
Your  affectionate  father, 

R.  H.  DANA,  JR. 


458  RICHARD  HENRY   DANA,  JR. 

CAMBRIDGE,  Apr.  17,  1866. 
MY  DEAR  BOY,  — 

Your  mother  and  Charlotte  .  .  .  will  come  up 
two  or  three  days  before  the  confirmation  and  stay 
about  a  week. 

I  will  come  up  a  day  or  two  before,  but  cannot  give 
more  than  two  days  to  it,  as  I  am  very  hard  pressed 
with  work  here.  You  need  not  engage  me  a  place, 
as  I  can  board  in  Concord,  for  the  short  time. 

Your  mother  wants  me  to  remind  you  that  she 
asked  you  to  buy  a  present  for  [your  sister]  Rosamond 
at  the  Fair,1  as  it  was  Rosamond  who  did  all  the  work 
in  getting  up  the  articles  we  sent  you.  .  .  . 
,  We  are  rejoiced  to  hear  of  your  steady,  decided 
//efforts  for  a  religious  life.    Of  course,  there  are  fail 
ures.  It  is  a  contest.  The  war  never  ends  in  this  life. 
Victories  and  defeats  succeed  each  other,  but  the 
final  conquest  and  peace  is  not  on  earth. 
Good-bye. 

Your  affectionate  father, 

R.  H.  DANA,  JR. 

We  shall  be  very  glad  of  the  may  flowers. 

Apr.  24,  1866. 
DEAR  RICHARD,  — 

I  can't  imagine  your  losing  a  fur  cap.  I  should  as 
soon  think  of  losing  a  bureau  or  bed.  You  need  not 
pay  for  your  ball-cap.  I  will  give  you  the  money. 

Don't  make  yourself  nervous  about  your  spiritual 

1  Missionary  Society  Fair  at  St.  Paul's  School. 


LETTERS  FROM  A  FATHER  TO  A  SON   459 

condition.  You  must  be  natural  and  cheerful,  and 
try  to  cultivate  grateful  feelings  towards  God.  They 
will  help  to  keep  you  in  obedience,  as  much  as  direct 
efforts.  But  we  shall  soon  be  up  to  see  you,  and  talk 
with  you  personally. 
Good-bye. 

Your  affectionate  father, 

R.  H.  DANA,  JR. 

October  14,  1866. 

MY  DEAR  BOY,  — 

A  course  of  faithful  efforts  not  only  gives  you  the 
satisfaction  of  a  good  conscience  and  a  peaceful  mind, 
but  the  pleasure  of  knowing  that  you  are  giving  com 
fort  to  others,  --to  your  parents,  whose  happiness  in 
later  life  is  to  depend  a  good  deal  on  your  course.  .  .  . 

I  have  resigned  my  office  of  United  States  Attorney 
because  I  could  not  adopt  the  President's  [Johnson's] 
policy  and  approve  his  sentiments,  and  preferred  to 
be  in  an  independent  position.  .  .  . 

It  gives  me  great  comfort  to  know  that  you  are 
happy  in  your  studies  and  games  and  school  and 
teachers  and  classmates.  This  is  a  great  blessing. 
Few  schools  give  boys  so  much  satisfaction.  After 
all,  too,  the  mind  gives  color  to  all  about  it.  ... 
Your  affectionate  father, 

R.  H.  DANA,  JR. 

Nov.  23,  1866. 
MY  DEAR  BOY,  - 

It  would  give  us  great  pleasure  to  see  you  at 
Thanksgiving,  and  especially  your  Aunt  Betsey  and 
Grandfather  would  be  gratified;  but  I  still  think  that 
it  is  so  near  to  your  regular  vacation  that  it  would 


460  RICHARD  HENRY  DANA,  JR. 

rather  take  off  the  edge  of  your  pleasure  and  of  our 
expectation  to  come  down  for  that  day  and  go  back. 

I  think  you  had  better  stick  it  out  until  the  Christ 
mas  holidays,  and  have  that  to  look  forward  to.  It 
is  some  expense  for  me,  which  it  is  best  to  save.  If 
I  find  your  Aunt  Betsey  has  set  her  heart  on  it,  I  will 
send  for  you,  but  my  opinion  is  against  your  coming. 

Mr.  Appleton1  has  got  home.  He  left  his  yacht  in 
England,  for  the  winter. 

Judge  French 2  has  given  up  his  Agricultural  Col 
lege,  and  come  back  to  the  Boston  Bar. 

We  are  all  well.    How  blessed  it  is  to  live  in  a 
Christian  family,  and  under  religious  influences,  and 
to  be  conscious  that  one  is  really  trying  to  serve  and 
obey  God !  May  you  ever  keep  that  state ! 
Your  affectionate  father, 

R.  H.  DANA,  JR. 

Advent  Sunday,  Dec.  2,  1866. 
MY  DEAR  BOY,  - 

It  is  twenty-two  years  ago  to-day  that  the  Church 
of  the  Advent  was  begun  by  Dr.  Croswell.  He  came 
to  Boston  early  in  November,  and  organized  the 
parish,  and  held  the  first  service  on  Advent  Sunday. 
That  led  to  its  being  called  the  Church  of  the  Advent. 
I  proposed  the  name,  and  suggested  the  cross  over 
the  altar,  and  the  words  "Lo  I  Come"  for  the  motto. 
So  far  as  I  know,  it  is  the  first  church  in  this  country 
or  England  that  ever  bore  the  name.  .  .  . 

Dr.  Croswell  baptized  you,  and  when  he  entered 

1  Thomas  G.  His  yacht,  the  Alice,  was  the  first  boat  so  small  that 
had  ever  crossed  the  Atlantic. 

*  Father  of  my  friend  and  playmate,  Daniel  C.  French,  the  sculptor. 


LETTERS  FROM  A  FATHER  TO  A  SON   461 

the  three  names  in  the  Parish  Register,  all  alike,  yours 
and  your  grandfather's  and  mine  as  sponsors,  he  said, 
"May  there  never  be  wanting  a  Richard  Henry  to 
stand  before  the  Lord!"  I  want  you  to  remember 
these  things.  .  .  . 

You  were  duly  remembered  by  us  all  at  Thanks 
giving,  and  missed.  We  were  all  well,  and  had  a 
pleasant  time  at  Aunt  Betsey's. 

Good-bye,  and  may  God's  blessing  rest  upon  you. 
Your  affectionate  father, 

R.  H.  DANA,  JR. 

February  3,  1867. 

MY  DEAR  BOY,  — 

...  I  missed  you  very  much.  This  was  not  only 
because  you  are  the  only  boy,  but  because  we  had 
begun  to  get  acquainted  and  I  liked  to  talk  to  you 
and  read  with  you.  I  was  very  sorry  to  be  so  very 
much  engaged  while  you  were  here.  I  do  not  recollect 
ever  having  so  little  leisure.  I  wished  to  read  with 
you,  as  a  practice  in  reading,  and  to  get  you  interested 
in  subjects  and  to  try  you  in  elocution.  But  I  seemed 
to  have  scarce  an  hour.  ...  It  seemed  as  if  I  might 
have  become  acquainted  with  your  mind,  to  know 
more  of  your  feelings  and  opinions.  But,  perhaps, 
if  God  spares  both  our  lives,  we  may  become  better 
acquainted  next  summer.  .  .  . 

Your  affectionate  father, 

R.  H.  DANA,  JR. 

March  10, 1867. 
MY  DEAR  BOY,  — 

Your  last  journal,  down  to  the  examination,  was  a 
good  one,  and  I  did  not  let  any  one  read  it,  but  read 


462  RICHARD  HENRY  DANA,  JR 

to  the  family  such  parts  as  I  thought  you  would  not 
object  to  their  hearing.  I  wish  you  to  feel  entirely 
free  in  writing,  and  be  sure  that  nothing  will  be  seen 
by  others  except  upon  my  judgment. 

Do  not  let  it  be  a  toil  to  you,  yet  stick  to  it  as 
closely  as  you  can,  for  it  is  a  good  exercise,  morally 
and  intellectually.  You  have  improved  in  spelling. 
The  enclosed  list  is  all  the  errors  —  and  one  of  those 
is  not  a  mistake  in  letters  —  in  sixteen  pages  of 
manuscript. 

As  to  self-examination,  I  think  you  have  now 
arrived  at  an  age  when  you  can  lay  out  your  faults 
into  classes,  putting  together  those  that  are  cognate, 
and  examine  yourself  by  them.  I  have  great  faith 
in  this  process,  gone  through  with  at  the  beginning 
of  a  day,  in  anticipation,  as  well  as  at  the  end  of  a 
day,  in  retrospect. 

I  have  a  speech  in  the  Legislature,  which  has 
attracted  a  good  deal  of  attention  in  other  states,  on 
the  repeal  of  what  are  called  the  Usury  Laws;  i.  e., 
the  laws  limiting  interest  on  money  to  six  per  cent. 
I  favored  the  repeal  of  all  limits,  leaving  money  to 
find  its  level,  like  merchandise.  I  am  also  giving  two 
lectures  per  week,  at  the  Lowell  [Institute],  on  Inter 
national  Law,  beside  my  professional  duties  and 
attendance  on  the  Legislature,  and  so  am  very  busy. 
Your  affectionate  father, 

R.  H.  DANA,  JR. 

March  SI,  1867. 
MY  DEAR  BOY,  — 

...  In  speaking,  do  not  make  gestures,  unless  you 
feel  that  you  must,  —  unless  nature  prompts  them. 


LETTERS  FROM  A  FATHER  TO  A  SON   463 

And  speak  slowly,  deliberately,  and  forcibly.  A 
speech  without  a  gesture  may  be  a  good  one.  You 
have  great  moral  helps  in  your  school.  You  do  not 
know  how  little  is  done  for  the  religious  character 
of  boys  in  most  schools. 

Your  affectionate  father, 

R.  H.  DANA,  JR. 

[The  following  letter  was  in  reply  to  one  from  me,  written 
when  sixteen  years  of  age.  I  had  told  how,  in  conversation,  I 
sometimes  left  false  impressions,  for  example,  of  having  read  a 
book  I  had  not  really  read  but  had  only  heard  about.  After 
receiving  father's  letter,  I  made  a  point  of  correcting  every  false 
impression  I  might  have  left,  though  I  no  doubt  bored  others 
with  small  matters  which  gave  them  no  concern.] 

Sunday  evening,  April  7,  1867. 
MY  DEAR  SON,  - 

.  .  .  Failure  in  truth  comes  usually  from  want  of 
moral  courage.  People  do  not  dare,  especially  when 
facing  another  or  when  taken  by  surprise,  to  say 
what  may  injure  themselves,  or  hurt  another.  So 
they  take  to  shifts,  evasions,  equivocations,  and  even 
direct  lies.  I  know  persons  who  can  say  the  truth  in 
letters  but  not  face  to  face. 

Sometimes  falsehood  comes  from  malice  or  pride. 
Then  it  is  deliberate  and  not  the  result  of  fear.  .  .  . 
Recollect  that  ordinarily  want  of  truth  is  an  eff< 
and  not  a  cause.  There  is  some  fault  leads  to  it, 
fear,  or  pride,  or  malice.  You  must  search  for 
cause. 

But  also  make  it  a  serious  point  of  self-examination 
every  night  and  prayer  every  morning,  —  exact  truth. 
Correct  yourself  in  little  things,  and  if  you  have  told 


464  RICHARD  HENRY  DANA,  JR. 

any  one  what  is  not  true,  go  to  him  and  correct  it. 
This  will  mortify  your  pride  and  be  a  good  discipline. 
It  is  a  noble  thing  in  you  to  confess  this  so  fairly, 
and  I  argue  the  best  for  you  from  it. 

Your  affectionate  father, 

R.  H.  DANA,  JR. 

Sunday  evening,  May  12, 1867. 

MY  DEAR  BOY,  — 

Your  mayfl owers  came  in  good  order,  with  a  letter 
to  your  mother.  I  am  very  glad  you  sent  them.  .  .  . 

I  think  $7  was  too  much  to  spend  at  the  fair,  for 
a  boy  of  your  age.  I  have  no  doubt  the  others  spent 
as  much  or  more,  but  the  boys  are  most  of  them  rich, 
or  have  rich  parents.  Did  you  not,  from  the  $7,  buy 
anything  permanent,  or  anything  to  give  to  either 
of  your  sisters?  You  should  remember  that  Rosa 
mond  took  a  good  deal  of  pains  to  get  up  things,  and 
you  should  have  remembered  her  by  a  present. 

.  .  .  You  had  [better]  begin  now  to  write  your 
journal  again.  It  is  a  good  task,  and  helps  you  in 
freedom  of  expression,  as  well  as  in  observance  of 
yourself.  .  .  . 

We  had  a  superb  Easter  at  the  Advent,  and  the 
church  was  crowded,  people  standing  in  the  passages. 

Your  affectionate  father, 

R.  H.  DANA,  JR. 

June  14, 1867. 
MY  DEAR  BOY,  — 

We  enjoyed  highly  our  visit  to  St.  Paul's.  Nothing 
could  have  been  pleasanter,  and  we  were  rejoiced  at 
finding  you  so  well,  and  content,  and  respected  by 


LETTERS  FROM  A  FATHER  TO  A  SON   465 

your  teachers.  Dr.  Coit  spoke  in  the  best  terms  of 
you. 

I  remember,  perhaps  not  exactly,  a  few  lines,  which 
I  have  no  time  to  look  up,  —  from  Horace,1 1  believe, 

Os  homini  sublime  dedit,  coelumque  tueri 
Jussit,  et  erectos  ad  astra  2  tollere  vultus. 

I  want  you  to  commit  this  to  memory,  and  say  it, 
when  you  are  walking  with  bent  shoulders  and  eyes 
on  the  ground.  Christian  humility  does  not  require  a 
man  to  be  prone  or  downcast. 

I  shall  try  to  be  up  on  the  25th,  but  it  is  uncertain. 
Your  affectionate  father, 

R.  H.  DANA,  JR. 

Do  not  trouble  to  write  a  journal  during  the  rest 
of  the  term,  as  your  studies  will  be  hard. 

MANCHESTER,  MASS.,  Sept.  19, 1867. 
MY  DEAR  BOY,  — 

We  have  had  one  of  the  Masters  of  Rugby  staying 
with  us  for  two  days,  Mr.  Lee  Warner.  We  have  liked 
him  much. 

I  wish  you  would  occasionally  write  your  mother 
instead  of  me.  It  will  gratify  her. 

Your  affectionate  father, 

R.  H.  DANA,  JR. 

MANCHESTER,  Oct.  1, 1867. 
MY  DEAR  BOY,  — 

Your  few  kind  words  to  your  mother  gave  her  great 
pleasure. 

1  From  Ovid.  Metamorphoses,  Book  I,  85,  86. 

2  Sidera  in  the  original. 


466  RICHARD  HENRY  DANA,  JR. 

We  are  both  glad  to  know  that  you  are  attending 
to  geology  and  mineralogy.  It  is  well  to  know  the 
earth  on  which  we  live,  —  its  physical  history,  its 
powers,  actions,  and  capabilities.  This  knowledge 
will  make  you  an  attentive  observer,  wherever  you 
travel,  and  will  give  you  objects  of  interest  in  even 
the  dullest  and  most  unpromising  places.  Geology, 
in  its  larger  and  higher  aspects,  is  a  noble  study  for 
thought.  You  should  know  the  earth,  stars,  trees, 
flowers,  and  birds.  Some  men  go  through  life  as  if 
they  were  deaf  and  blind.  Such  tastes  lead  one  into 
the  country,  and  out  of  the  artificial  city  life,  and  are 
good  for  the  health  of  the  body  and  spirit. 

This  morning,  at  breakfast,  sitting  and  standing 
erect  were  talked  about,  and  we  all  agreed  in  the  hope 
that  Richard  would  be  careful  and  keep  his  figure 
erect.  Pray  don't  go  drooping  and  prone,  but  erect, 
manly.  .  .  . 

The  occasional  recurrence  of  the  Holy  Communion 
forms  an  excellent  opportunity  for  a  renewal  of  life, 
for,  as  a  mechanic  might  say,  tightening  up  the  screws, 
or,  as  they  do  on  the  railroads,  striking  the  wheels  to 
see  if  any  are  unsafe  for  the  next  journey,  and  oiling 
the  rough  and  grating  places.  I  am  glad  to  see  you  so 
using  it.  ... 

Good-bye,  my  dear  son. 

RICHARD  H.  DANA,  JR. 

CAMBRIDGE,  Oct.  27,  1867. 
MY  DEAR  BOY,  — 

We  have  got  your  letter  to  your  mother,  in  which 
you  tell  her  of  your  sickness.1  We  are  all  very  sorry 

1  I  suffered  much  from  occasional  attacks  of  slow  fever  and  forms 
of  indigestion,  from  which  I  never  fully  recovered  till  I  had  gone  through 


LETTERS  FROM  A  FATHER  TO  A  SON   467 

to  hear  of  it.  Sorry  for  the  discomfort  and  pain  you 
may  suffer,  for  your  loss  of  the  sports  and  walks,  and 
for  the  putting  back  in  your  studies.  When  you  get 
this,  just  put  a  piece  of  paper  in  an  envelope  and  send 
to  me,  to  say  how  you  are.  Don't  trouble  yourself 
to  write  a  letter  unless  you  wish  to  do  so. 

Take  good  care  not  to  get  sick.  Do  not  study  too 
hard.  No  learning  or  rank  will  make  up  for  a  loss  of 
health  and  vigor  of  body  and  brain. 

...  I  promised  to  send  you  the  Nation,  so  I  have 
begun  to  do  so.  It  may  be  a  little  too  old  for  you, 
but  I  think  you  will  find  things  there  to  interest  you. 

Your  affectionate  father, 

R.  H.  DANA,  JR. 

MANCHESTER-BY-THE-SEA, 
Sunday,  Sept.  20,  1868. 

MY  DEAR  SON,  — 

I  have  taken  my  first  leisure  Sunday  here,  to  write 
you  a  letter.  One  Sunday  I  was  at  Windsor,1  and 
another  at  Newport. 

We  have  just  had  service.  All  there  but  Sally,  who 
is  still  in  B.  or  C.,  and  you,  and  your  Aunt  C.,  who 
has  her  Roman  Catholic  service  for  herself  and  the 
servants.  Your  grandfather  read  the  lessons  and  I 
the  prayer,  sermon,  and  epistle.  .  .  . 

You  have  noticed  that  I  have  invited  all  the  young 
men  to  read  [the  Lessons],  for  I  think  it  does  them 
good  to  be  treated  as  within  the  body  of  believers  in 
such  common  exercises.  .  .  . 

training  on  a  college  crew.  Since  my  rowing  experience,  I  have  never  had 
returns  of  such  troubles. 

1  Windsor,  Vermont,  with  Mr.  William  M.  Evarts. 


468  RICHARD  HENRY  DANA,  JR. 

As  to  your  request  for  the  Nation,  I  do  not  feel  sure 
that  it  is  best  for  you.  You  had  better  not  get  inter 
ested  in  party  politics.  You  are  in  danger  of  getting 
excitement  and  confidence  without  real  knowledge. 
By  and  by,  you  will  read  histories  and  works  on  the 
constitution  of  states  and  political  economy,  and  will 
e  better  grounded  in  principles  from  which  to  judge 
f  passing  questions. 

By  the  way,  a  teacher  ought  not  to  be  arguing  and 
enforcing  his  opinions  upon  boys.  I  am  sure  Dr.  Coit 
would  not  like  it. 

As  to  the  bonds,  I  do  not  know  who  the  teacher  is 
to  whom  you  refer;  but  either  he  has  some  sharp 
point  of  technical  law  in  his  head,  or  he  does  not 
appreciate  the  nature  of  the  public  faith  of  a  nation. 
The  borrowed  money  of  a  nation  is  always  a  sacred 
debt,  governed  not  by  rules  of  municipal  law,  which 
govern  all  other  debts,  but  by  rules  of  honor.  We 
borrowed  the  money  when  we  were  in  straits,  and 
gave  bonds  for  it,  promising  to  pay  so  many  dollars 
on  each  bond.  The  Republicans  say  we  are  bound  in 
honor  to  pay  in  gold  or  silver  dollars,  or  in  paper  as 
good.  Paper  money  is  a  mere  promise  to  pay.  Now, 
when  we  borrow  money  and  promise  to  pay  it,  can 
we  pay  it  by  giving  a  written  promise  to  pay?  It  is 
only  an  extension  of  the  time  of  payment.  It  is,  in 
short,  the  act  of  a  bankrupt.  This  nation  is  not  bank 
rupt,  and  is  bound  in  honor  to  pay.  The  Democrats 
thought  it  would  be  a  popular  thing  to  raise  a  cry 
against  the  bondholders,  but  it  has  failed.  Our  people 
mean  to  pay  back  honestly  their  borrowecFmoney. 

Do  not  study  too  hard.  If  you  are  pretty  well  next 
vacation,  you  had  best  have  a  Greek  teacher  every 


LETTERS  FROM  A  FATHER  TO  A  SON   469 

other  day.1    All  send  love  to  you,  and  are  much 
obliged  to  you  for  your  full  letters. 
Good-bye,  my  dear  boy. 

Your  affectionate  father, 

R.  H.  DANA,  JR. 

BOSTON,  Nov.  27, 1868. 
MY  DEAR  BOY,  - 

Don't  sell  the  sled.  You  are  right  as  to  the  feeling. 
Never  sell  a  present.  Never  give  one  away,  unless  in 
some  case  of  distress  when  you  have  nothing  of  your 
own  to  give. 

If  your  skates  are  good,  only  not  as  handsome  or 
nice  as  you  would  like,  keep  them.  If  they  are  not 
good,  sell  them  and  buy  another  pair. 

We  were  all  at  your  Grandpapa's  at  Thanksgiving. 
.  .  .  Your  health  was  duly  honored. 
In  haste, 

Your  affectionate  father, 

R.  H.  DANA,  JR. 

Tuesday,  P.  M.,  31  May,  1870. 
MY  DEAR  RICHARD,  - 

I  have  just  received  your  note,  but  your  mother 
says  you  have  not  answered  one  of  the  questions  she 
asked  you  to  answer  at  once.  Now,  Dick,  don't  be 
wool-gathering,  but  answer  them  by  return  mail. 

6.  Tell  me  which  is  the  best  hotel  in  Concord  for 
us  to  go  to.  We  —  Mamma,  one  of  the  girls,  and  I  — 
shall  come  up  Wednesday  noon,  I  hope. 

1  To  make  up  loss  of  lessons  caused  by  illness. 


470  RICHARD  HENRY  DANA,  JR. 

Now  answer  at  once  these  six  questions,  and  you 
need  say  no  more. 

Your  affectionate  father, 

R.  H.  DANA,  JR. 


30  Court  Street,  BOSTON,  May  12, 1870. 
DEAR  R.,  — 

I  enclose  a  good  monthly  report.  I  have  written 
Dr.  Coit  in  favor  of  your  being  examined  at  the  June 
instead  of  the  September  examination,  and  in  favor 
of  your  entering  freshman.1  .  .  . 

Your  affectionate  father, 

R.  H.  DANA,  JR. 


PORTREE,  ISLE  OF  SKYE, 

Aug.  24, 1870. 
MY  DEAR  SON,  - 

I  write  you  from  this  strange  place,  because  I 
possibly  may  not  be  back  before  you  enter  college. 

Your  course  at  St.  Paul's  has  been  such  as  to  entitle 
you  to  my  entire  confidence.  At  the  same  time,  the 
college  course  of  four  years  is  one  of  such  moment, 
and  so  decisive  of  one's  character  and  future,  that  I 
am  naturally  desirous  of  saying  a  few  words  to  you 
as  you  enter  upon  it.  I  am  the  more  moved  to  do  so 
by  a  sense  that  it  is  within  possibility  —  though  I  am 
not  given  to  entertaining  fears  —  that  I  may  never 
see  you  all  again. 

If  I  should  not,  you  will  see  that  great  responsi 
bility  lies  on  you  as  to  your  mother  and  five  sisters, 

1  Dr.  Coit  preferred  to  have  boys  stay  one  extra  year  at  school  and 
enter  sophomore,  so  as  to  avoid  what  he  considered  the  special  dangers 
of  the  freshman  year. 


LETTERS  FROM  A  FATHER  TO  A  SON   471 

-  as  your  grandfather  can  live  but  a  short  time,  and 
there  is  no  uncle  or  brother.  But  if  I  do,  as  I  doubt 
not,  return,  I  have  had  so  many  warnings  that  my 
anxious  and  hard-worked  life  may  end  suddenly  that 
your  position  may  at  any  time  be  a  grave  one. 

You  know  that  in  such  event  your  first  duty  is  to 
your  mother.  For  advisors,  you  will  go  to  Mr.  Parker 
and  Judge  Hoar,  who  are  my  firm  friends  as  well  as 
business  trustees. 

I  took  an  expensive  Holworthy  room  for  you,  in 
order  that  you  might  have  the  great  advantage, 
whoever  may  be  your  chum,  of  a  place  by  yourself, 
for  reading  and  meditation.  It  is  of  inestimable 
value.  Now,  I  wish  you  to  bear  in  mind  why  it  was 
done,  and  use  it  accordingly.  Let  me  propose  this  to 
you,  —  very  likely  you  would  do  it,  of  yourself, — 
when  you  take  possession  of  your  bed-chamber,  con 
secrate  it  by  an  offering  to  God  in  prayer.  Ask  that 
it  may  be  to  you  a  sanctuary  for  prayer,  for  devout 
reading  and  thought,  and  for  self-examination  and 
penitence. 

You  will  also  find  it  a  place  of  retreat  from  com 
pany.  And,  on  that  point,  you  must  begin  right.  At 
Harvard,  you  will  find  a  good  many  idlers  and  gos- 
sipers,  for  it  is  little  better.  Such  men  are  cankers 
of  one's  time.  Never  hesitate  to  say  that  you  are 
engaged,  —  that  you  must  study,  —  and  your  bed 
room  gives  you  a  retreat. 

My  only  fear  about  your  room  was  that  you  would 
have  the  appearance  to  others  of  starting  on  a  scale 
of  expense  larger  than  I  wish  you  to  keep  up.  It  is 
necessary  that  you  live  as  economically  as  possible, 
for  my  burdens,  with  your  mother  and  sisters  and 
you,  will  be  very  heavy.  And  anxiety  —  not  work  — 


472  RICHARD  HENRY  DANA,  JR. 

wears  one  out.  Besides,  it  is  better  for  you.  Self- 
denial  and  the  habit  of  refusing  others  give  both 
strength  of  character  and  independence. 

Don't  pay  much  attention  to  the  apparent  opinion 
of  classmates  as  to  one  another,  as  to  who  is  or  will 
be  this  or  that,  especially  at  first.  The  only  question 
is  this,  —  what  will  a  man  be  in  respect  of  character 
and  acquirements  at  the  end.  And  as  to  that,  you 
know  that  I  have  no  ambition  about  your  relative 
rank.  First,  take  care  of  your  health.  If  you  are  not 
strong  to  labor,  our  family  must  go  down,  in  poverty 
and  obscurity.  Keep  health,  if  you  are  the  fiftieth 
scholar.  If  you  come  out  with  character,  health^  and 
knowledge,  that  is  all. 

Do  not  get  drawn  into  young  girls'  society.  It  is 
possible  that  you  may  become,  or  may  think  you  are, 
interested  in  some  one.  Think  what  you  are  to  do  on 
earth.  Man  is  meant  to  be  and  to  do,  and  not  to  be 
tied  down.  You  have  four  years  of  college,  and  then 
of  a  profession,  —  through  all  which  you  must  be 
free,  to  do  whatever  will  be  best  for  your  future.  Don't 
let  your  good  sisters  make  a  ladies'  man  of  you.  Take 
care  to  use  your  Sundays  at  home  profitably. 

If  you  get  into  any  trouble,  by  your  own  fault  or 
by  accident,  come  to  me  at  once.  I  know  and  can 
allow  for  the  temptations  of  youth;  and,  surely  you 
need  not  fear  that  I  shall  be  hard  or  unsympathetic. 
Remember  that,  and  treat  me  as  your  friend  as  well 
as  father. 

Good-bye,  my  dear  boy.  There  is  nothing  to  make 
you  anxious,  but  everything,  with  watchfulness,  to 
encourage  you. 

Your  affectionate  father, 

RICHARD  H.  DANA. 


LETTERS  FROM  A  FATHER  TO  A  SON   473 

BOSTON,  July  11,  1871. 
DEAR  R.,  — 

.  .  .  You  will  be  tempted  by  this  incessant  and 
absorbing  interest1  and  the  constant  presence  of 
others.  But  never  let  your  reading  or  devotions  go 
by  or  be  slighted.  This  is  to  be  one  of  your  trials,  my 
dear  boy. 

Your  affectionate  father, 

R.  H.  DANA,  JR. 

BOSTON,  July  15, 1872. 
MY  DEAR  BOY,  — 

.  .  .  Pray  be  careful  about  your  training.  Do  not 
overdo.  A  gentleman  who  saw  you  here  last  week 
thought  you  looked  a  little  overdone. 

I  care  very  little  which  boat  is  a  few  inches  or  feet 
ahead,  but  any,  the  slightest,  injury  to  your  organs, 
or  brain,  or  blood  vessels  would  be  a  lifelong  distress. 
Ten  persons  speak  to  me  of  the  risk,  to  one  who  speaks 
of  the  result. 

You  know  I  am  not  a  croaker  or  fearful.  And  I 
have  confidence  in  your  discretion  and  self-restraint. 
Only,  don't  let  them  fail  you. 

Your  affectionate  father, 

R.  H.  DANA,  JR. 

BOSTON,  Aug.  24, 1872.   4  p.  M. 
DEAR  RICHARD,  - 

I  congratulate  you  on  the  race;2  for,  though  not  the 
victors,  it  is  something  to  be  second  out  of  six.  .  .  . 

1  Freshman  boat-races  on  the  Connecticut  above  Springfield,  won 
by  the  Harvard,  on  which  I  rowed  stroke. 

2  Intercollegiate  university  race  at  Springfield.   I  was  rowing  stroke 
of  the  Harvard  "varsity"  crew. 


474  RICHARD  HENRY  DANA,  JR. 

Besides,  my  dear  boy,  it  may  be  better  for  you  in 
the  end,  not  to  have  been  victorious.  It  is  a  disci 
pline  to  your  moral  character.  Perhaps  you  may  be 
able  to  thank  God  for  some  of  these  little  disappoint 
ments  and  mortifications.  An  uniformly  successful 
youth  is  not  the  best  presage  for  life. 

I  think  the  Harvard  men  will  be  generally  very 
proud  of  the  result,1  although  short  of  what  it  might 
have  been. 

Your  affectionate  father, 

R.  H.  DANA,  JR. 

BOSTON,  Aug.  26, 1872. 
MY  DEAR  BOY,— 

.  .  .  But,  my  dear  matriculated  Harvard  student, 
"knee  buckles"  is  not  spelt  "nee  buckles,"  and 
"whom"  is  the  objective  case,  not  "who,"  e.  g. 
"whom  we  are  expecting,"  -not  "who  we  are  ex 
pecting."  You  must  remember  that  there  is  a  preju 
dice  in  favor  of  spelling  and  grammar  which  it  is  not 
wise  to  cross. 

I  enclose  two  letters  of  introduction  for  you  in 
Philadelphia.  I  wish  you  would  stay  over  a  few  hours 
there,  and  call  upon  Mr.  Binney  and  Judge  Hare. 
Mr.  Binney  is  ninety -four  years  of  age,  I  think,  and 
in  many  respects  may  be  called  "the  first  citizen  of 
the  Republic."  He  was  a  classmate  of  my  uncle;2  at 

1  Amherst  first,  Harvard  second,  Yale  1  minute,  16  seconds  behind 
Harvard. 

2  Probably  Francis  Dana,  who  was  in  the  class  ahead  of  Mr.  Binney, 
or  Edmund  T.  Dana,  who  was  two  classes  below.    Though  not  class 
mates,  they  were  in  college  at  the  same  time,  and  knew  Mr.  Binney. 


LETTERS  FROM  A  FATHER  TO  A  SON   475 

Harvard,  a  friend  of  my  father,  and  a  most  kind  and 
courteous  friend  to  me.  It  is  an  honor  to  you  to  know 
him,  and  he  will  esteem  it  an  attention  on  my  part  to 
introduce  you.  Judge  Hare  is  his  son-in-law,  and  a 
lifelong  friend  of  mine. 

If  Mr.  Wayne  McVeagh  is  in  Harrisburg,  call  on 
him,  in  my  name. 

Your  affectionate  father, 

R.  H.  DANA,  JR. 

STEAMER  OLYMPUS,  OFF  QUEENSTOWN, 

July  18,  1873. 
MY  AND   OUR   DEAR   FRIENDS  ALL,  - 

Professor  Child  is  invaluable,  —  never  sick,  self- 
sacrificing,  obliging,  and  doing  something  for  every 
one  in  need,  getting  up  singing  and  other  entertain 
ments,  and  every  afternoon  has  all  the  children  about 
him,  telling  them  fairy  stories. 


MY  DEAR  BOY,  — 


RICHARD  H.  DANA,  JR. 
LIVERPOOL,  July  21,  1873. 


Now,  my  dear  boy,  what  shall  I  say  of  the  race? 
We  heard  the  news,  which  wras  in  the  Times  of  Sat 
urday,  -  -  Yale  (1),  Wesley  an  (2),  Harvard  (3).  I  am 
sorry  for  you,  for  your  faithful  efforts,  your  conscien 
tious  work  for  two  years,  deserved  success.  But 
Harvard  averages  better  for  the  two  years,  I  suppose, 
than  any  college.  Of  course,  there  is  a  secret  history, 
which  I  shall  hear.  As  I  told  you,  if  you  come  out  in 


476  RICHARD  HENRY  DANA,  JR. 

good  health,  unharmed,  I  am  grateful  to  God.  The 
all  but  chance  result  of  a  close  race  of  many  boats  is 
of  no  real  moment.  And,  perhaps,  the  effect  on  your 
\character  may  be  better  than  if  you  had  led  the  race. 
And  that  is  the  great  point  with  you  and  me  and  us 
all.  What  will  you  be  when  you  begin  the  work  of 
the  world?  That  is  the  question,  in  God's  sight  and 
in  the  opinion  of  men.  I  know  you  feel  all  this  and 
appreciate  it,  and  I  need  say  no  more  to  such  a  man 
as  you  are,  —  commanding  the  respect  as  well  as  the 
affection  of  his  father. 

Your  affectionate  father, 

RICHARD  H.  DANA,  JR. 

BEX  [SWITZERLAND],  Aug.  10, 1873. 
MY  DEAR  BOY,  - 

We  .  .  .  reached  London  on  Friday,  25th  July, 
and  stayed  there  a  little  over  a  week.  In  the  course 
of  that  time,  L.  [one  of  his  daughters]  saw  both  houses 
of  Parliament  in  session,  heard  Mr.  Gladstone's 
speech  on  the  Duke  of  Edinburgh's  annuity,  and 
heard  a  few  words  from  other  public  men  in  each 
house,  and  saw  most  of  the  eminent  public  men,  such 
as  Lord  Granville,  the  Duke  of  Argyll,  Marquis  of 
Ripon,  Marquis  of  Salisbury,  Earl  of  Derby,  Lord 
Chancellor  Selborne,  the  Archbishop  of  Canterbury, 
etc.,  etc.  Then  she  dined  at  Lady  Frederick  Caven 
dish's  with  Lord  Lyttelton  and  William  H.  Glad 
stone,  and  lunched  with  Lord  and  Lady  Kinnaird, 
and  on  Sunday  afternoon  heard  Canon  Liddon  preach 
at  St.  Paul's,  and  the  Sunday  before  heard  Dr. 
Vaughan  at  the  Temple  and  Dean  Stanley  at  West- 


LETTERS  FROM  A  FATHER  TO  A  SON   477 

minster  Abbey.    All  three  are  good  speakers,  but 
Canon  Liddon  is  a  master  of  elocution.  .  .  . 

It  was  a  joyful  meeting,  for  which  we  should  hold 
grateful  hearts  to  God. 

S.  and  R.  had  come  from  Leuke  Bad  a  few  days 
before,  so  our  circle  was  complete,  with  the  exception 
of  the  dear  son  and  brother.  But,  I  brought  them 
your  last  photograph,  which  was  new  to  them,  and 
served  somewhat  to  make  up  for  your  absence.  .  .  . 
Your  affectionate  father, 

R.  H.  DANA,  JR. 

PARIS,  August  31, 1873. 
MY  DEAR  SON,  — 

I  do  not  think  naught  of  success,  even  in  jumping 
over  a  pole,  where  it  depends  on  qualities  brought  to 
bear;  and  I  acknowledge  that  boat  training  and  racing 
are  a  discipline  and  test  of  qualities,  moral  and  men 
tal,  as  well  as  physical.  But  I  assure  you  that  Blaik- 
ie's  tribute  to  you,  in  the  Herald,  as  you  appeared 
the  night  after  the  race,  gave  me  more  satisfaction  — 
I  mean  true,  real  satisfaction  —  than  I  should  have 
received  from  the  mere  fact  that  your  boat  was  a 
little  ahead  of  the  others.  Which  boat  was  ahead  is 
a  trifle.  What  character  you  have  at  twenty-five  or 
thirty  years  of  age,  is  of  unlimited  importance  to  you, 
and  of  far  more  interest  to  me.  You  have  my  respect 
and  my  entire  sympathy  in  all  you  did.  .  .  . 

Good-bye,  my  dear  boy,  and  may  God  bless  you 
and  keep  you  "under  the  shield  of  faith." 

Your  affectionate  father, 

RICHARD  H.  DANA,  JR. 


478  RICHARD   HENRY  DANA,  JR. 

P.  S.   .   .   . 

The  extract  you  sent  me  from  Mr.  Walker  was  very 
gratifying.  He  is  a  gentleman,  and  appreciates  high- 
toned  conduct  in  others. 

You  have  the  sympathy  and  respect  of  all  of  us, 
for  we  feel  that  you  have  acted  a  thoroughly  manly 
and  generous  part,  and  that  is  the  great  point.  The 
result  confirms  the  opinion  I  have  always  had  that 
a  big  university  race,  in  which  so  many  boats  take 
part,  and  in  which  the  "schools"  are  admitted,  would 
prove  unsatisfactory.  The  sooner  they  are  abandoned, 
the  better. 

I  am  glad  you  are  at  work  on  the  Washington. 
Read  some  poetry  also,  —  Shakespeare  and  Milton 
and  Horace.  Some  of  Burke,  e.  g.  "Economical 
Reform,"  "Letters  to  a  Late  Noble  Lord,"  "Concili 
ation  with  America." 

Again  good-bye,  my  dear  boy. 

Your  affectionate  father, 

R.  H.  D.,  JR. 

OXFORD,  Sep.  12, 1873. 
DEAR  DICK,  — 

I  think  the  Springfield  muddle  is  described  in  this 
—  Harvard  beat,  and  Yale  won.1 

Your  affectionate  father, 

R.  H.  DANA,  JR. 

1  This  was  the  year  of  the  double,  or  so-called  "diagonal,"  finish  line. 

How  Harvard  crossed  the  real  finish  line  first  and  then  stopped  rowing, 

how  the  judges  sighted  along  a  wrong  line  below  the  right  one,  how  the 

eferee,  relying  on  the  report  of  the  judges,  gave  his  decision  in  favor  of 


LETTERS  FROM  A  FATHER  TO  A  SON   479 

Oct.  20,  1873. 
DEAR  R.,- 

I  send  you  a  memorandum  I  have  had  written, 
from  my  dictation,  on  the  subject  of  your  debate. 
Preserve  it,  —  as  I  may  never  make  another.  Don't 
debate  from  it;  but  read  and  ponder,  and  then  lay  it 
aside,  and  speak  from  your  own  mind,  having  digested 
and  assimilated  it  all. 

You  should  form  habits  of  filing  important  papers ; 
and  I  think  it  best  to  destroy  at  once  what  I  do  not 
care  to  keep. 

Affectionate  father, 

R.  H.  D.,  JR. 

Oct.  30,  1873. 

DEAR  R.,  — 

I  hope  your  relations  with  that  society1  are  re 
established.  It  gives  me  pain  to  think  that  you  have 
not  been  able  to  serve  it  to  advantage.  Pray  do,  for 
the  rest  of  your  course  in  college. 

I  would  rather  have  had  you  president  of  St.  Paul's 
Society  than  of  any  club  in  college,  —  on  the  ground 
of  duty  and  character. 

Affectionate  father, 

R.  H.  D.,  JR. 

Yale,  though  the  flags  had  been  given  to  Harvard  by  the  Regatta 
Committee,  and  how,  on  discovering  the  judges'  error  too  late  to  change 
his  decision,  he  published  a  card  over  his  signature,  saying  "The  race 
was  not  decided  upon  its  merits,"  is  told  in  the  Harvard  Book  (Univer 
sity  Press,  1875,  vol.  ii,  pp.  244-246),  with  diagram  taken  from  the 
note-book  of  Mr.  Harris,  the  engineer  who  laid  out  the  course,  explain 
ing  the  error. 

1  St.  Paul's  Society,  at  that  time  very  inactive. 


480  RICHARD  HENRY  DANA,  JR. 

June  19,  1874. 
DEAR  R.,  — 

If  you  get  this  letter  before  your  declamation,  do 
not  make  any  gestures  because  you  think  them 
necessary  in  speaking.  Make  none  unless  you  feel 
them.  And  try  to  express  as  much  by  voice  and  as 
little  by  gesture  as  possible.  Yet,  as  yours  is  a  speech 
of  some  passion  (suppressed)  there  are  passages  where 
gesture  speaks  well. 

Never  mind  the  prize.  That  is  often  an  accident, 
and  sometimes  an  injustice.  But  get  the  experience 
of  such  a  speech. 

Your  affectionate  father, 

R.  H.  D.,  JR. 

July  8,  1874. 

I  should  like  to  show  myself  among  your  friends 
on  the  16th,1  but  it  would  not  be  right  for  you  and  me 
both  to  be  away  from  Boston  at  the  same  time,  in  the 
present  state  of  Chestnut  Street. 

R.  H.  D.,  JR. 

BOSTON,  July  11, 1874. 
DEAR  RICHARD,  — 

I  have  read  Bulwer,  but  not  "The  Parisians." 
Although  Bulwer  began  as  a  dandy,  and  some  affec 
tations  and  dandyisms  hung  about  him,  yet  there  is 
always  good,  deep,  serious  thought  and  striking  gen 
eralizations,  which  interest  me. 

Things  continue  in  such  a  state  at  Chestnut  Street 

1  The  day  of  the  university  boat-race  at  Saratoga. 


LETTERS  FROM  A  FATHER  TO  A  SON   481 

that  I  do  not  feel  it  right  for  me  to  leave  Boston, 
while  you  and  all  my  family  are  away.  So  I  must  let 
your  mother  and  C.  go  alone.  .  .  . 

You  know  my  perverse  sentiments  about  the  inter 
collegiate  regatta  system.  I  do  not  care  which  of  ten 
boats  is  half  a  length  ahead.  But  I  like  to  have  you 
succeed  in  what  you  have  spent  so  much  labor  and 
thought  upon,  and  moral  force;  and  my  moral  sense 
would  be  satisfied  to  see  Yale  punished  for  her  low 
tone  and  cunning  and  bullying  of  the  last  ten  years. 
So,  if  you  succeed,  you  will  find  your  father  greatly 
pleased  and  sympathetic;  and,  if  you  do  not  come  out 
first,  your  father  will  take  it  easily,  and  thank  God 
for  your  safety,  health,  moral  energy,  and  character, 
and  feel  that  a  defeat  may,  in  the  Providence  of  God, 
put  you  higher  in  His  sight,  and  even  in  the  things  of 
this  world,  at  thirty  years  of  age  than  a  victory.  .  .  . 

R.  H.  D.,  JR. 


BOSTON,  July  20,  1874. 
MY  DEAR  BOY,  - 

I  should  have  written  you  sooner,  but  the  interven 
ing  of  Sunday  prevented  my  getting  any  trustworthy 
information  until  this  morning. 

You  will  be  glad  to  know  that  the  special  corre 
spondent  of  the  Advertiser,  Allen,  is  a  Yale  man  (as  is 
the  editor) ;  that  Allen  was  at  the  raft  and  heard  all 
that  passed  between  the  Yale  and  Harvard  crews 
after  the  race;  that  he  has  given  a  faithful  account 
of  it,  representing  the  Yale  men  as  foul-mouthed 
blackguards,  and  highly  commending  the  self-com 
mand  and  dignity  of  Harvard.  He  says  the  forbear 
ance  of  the  Harvard  crew  was  all  that  prevented  a 


482  RICHARD   HENRY  DANA,  JR. 

general  row.  He  says  the  language  used  by  Yale  is 
not  fit  for  print.  The  other  Boston  papers  are  sub 
stantially  to  the  same  effect,  and  your  crew  have  the 
sympathy  and  applause  of  all  people.  The  few  Yale 
men  here  are  ashamed  and  silent. 

I.  As  to  the  race,  it  is  plain  that  you  were  fouled 
by  Yale,  —  indeed  such  is  the  decision  of  the  umpire. 
I  see  no  room  for  doubt  that  the  fouls  were  intentional. 
That  is  the  general  opinion  here. 

II.  These  fouls  delayed  and  embarrassed  you  so 
long  as  to  give  you  no  fair  chance  against  Columbia 
and   Wesleyan.     Whether   you   would   have  beaten 
Columbia  or  not  but  for  the  foul,  no  one  can  know, 
but  it  seems  probable. 

I  have  a  fear  that  this  crowding  and  fouling  of 
Harvard  was  an  understood  thing  between  Yale  and 
Wesleyan;  or,  perhaps,  not  pre-arranged,  but  readily 
fallen  into.1 

Harvard  stood  very  high  for  honor,  magnanimity, 
and  courtesy,  as  well  as  being  (probably)  the  best 
boat  on  the  lake,  and  Yale  is  disgraced. 

Still,  all  this  is  very  hard  to  bear.  If,  as  Scripture 
says,  "It  is  well  for  a  man  that  he  bear  the  yoke  in 
/.{his  youth,"  you  have  had  your  share  of  misfortune. 
Twice,  in  succession,  you  have  been  deprived  of  the 
fair  results  of  years  of  patient  thought,  hard  labor, 
self-denial,  and  self-restraint,  by  accident,  the  mis- 

1  Whether  pre-arranged  or  not,  the  Yale  crew  not  only  fouled,  but 
kept  the  Harvard  crew  from  rowing  until  Columbia  and  Wesleyan, 
which  had  been  behind,  had  gained  a  lead  of  some  six  lengths,  which 
lead  Harvard  was  not  able  to  overcome  when  once  she  got  clear  of  Yale, 
though  gaining  all  the  rest  of  the  way.  This  delay  was  the  more  pro 
voking  as  up  to  the  time  of  the  foul  Harvard  was  rowing  well  within 
her  powers,  at  thirty-four  strokes  per  minute.  She  had  not  spurted, 
while  both  Yale  and  Columbia  had. 


LETTERS  FROM  A  FATHER  TO  A  SON   483 

take  and  ignorance  and  fraud  of  others.  It  is  a  great 
discipline,  and  a  great  trial.  But,  my  dear  boy,  you  will 
[find]  that  the  prizes  of  life  go  much  in  the  same  way. 
Accident,  fraud,  mistake,  ignorance,  and  violence  art 
powerful  and  constant  agents,  and  Springfield  ana 
Saratoga  results  will  represent  a  large  portion  of  the 
public  results  of  life.  In  all  I  said  to  you  before  you 
went,  I  wished  to  prepare  you  for  the  disappointments 
and  dissatisfactions  that  I  knew  awaited  you. 

It  is  well  that  youth  is  hopeful  and  trustful  and 
buoyant;  but  I  have  seen  too  much  of  life  to  expect 
fair  results  from  the  action  of  great  numbers,  under 
great  excitement,  where  no  great  principle  is  clearlyl 
undeniably,  and  evidently  at  stake,  .  .  .  and  there 
is  [no]  time  for  sober  second  thought.  I  trust  this 
will  end  the  intercollegiate  regatta. 

You,  my  dear  boy,  have  done  nobly,  and  all  your 
friends  feel  so. 

Tell  me  if  the  umpire  was  the  man  Yale  nominated, 
and  you  objected  to,  as  one-third  professional,  etc. 
If  so,  how  was  he  got  in?  His  decision  is  illogical, 
but  I  suppose  it  means,  "I  must  condemn  Yale,  but 
will  give  Harvard  as  little  as  I  can." 

Write  me  what  you  mean  to  do,  and  when  you  go 
and  where! 

Affectionate  father, 

R.  H.  DANA,  JR. 

BOSTON,  Aug.  25, 1874. 
MY  DEAR  BOY,  - 

Don't  publish  a  word,  or  take  any  notice  of  news 
paper  accounts,  whether  Blaikie's,  or  any  one  else. 
You  have  a  vulgar,  forgetful,  scatter-brained  public 


484  RICHARD   HENRY  DANA,  JR. 

to  deal  with.1  Then,  if  you  deny  or  explain  a  single 
thing  in  the  papers,  it  will  be  treated  as  an  admission 
of  the  truth  of  everything  else  that  has  appeared,  and 
your  enemies  will  sneer  at  it,  and  perhaps  not  print 
it,  but  allude  to  it. 

You  have  my  entire  approbation  and  true  sym 
pathy.  .  .  . 

R.  H.  D.,  JR. 

BOSTON,  July  27,  1874. 
DEAR  R.,  - 

I  think  the  public  now  understands  clearly  that 
Wood  decided  that  Yale  was  in  fault  for  the  [foul], 
and  Harvard  exonerated,  as  he  (1)  refused  Yale's 
claim,  (2)  decided  that  she  caused  it  by  crossing  into 
your  water,  (3)  gave  you  your  place  in  the  race, 
which  you  would  have  forfeited  if  you  had  fouled 
Yale.  He  has  not  a  trained  mind,  and  is  no  writer, 
so  he  expressed  himself  bunglingly  as  to  the  disallow 
ing  of  your  claim  as  to  the  effect  on  the  race. 

His  decision  was  in  two  parts,  — first,  to  settle  the 
fact;  second,  to  determine  the  consequences  of  that 
fact.  The  fact  he  decided  clearly  enough,  —  that 
Yale  was,  and  you  were  not,  in  fault.  The  first  con 
sequences  he  decided  clearly  enough,  viz. :  that  you 
had  your  place,  and  as  Yale  had  no  place  to  lose,  she 
did  not  need  to  be  formally  deposed.  As  to  whether 
the  case  came  under  the  Rule  XIV,  and  the  construc 
tion  of  the  Rule,  he  was  not  logical  and  perhaps  un- 

1  Compare  the  words  of  Washington,  who  believed  that  the  people 
"mean  well,"  "but  it  is  on  great  occasions  only,  and  after  time  has  been 
given  for  care  and  deliberate  reflection,  that  the  real  voice  of  the  people 
can  be  known." 


LETTERS  FROM  A  FATHER  TO  A  SON   485 

sound;  but  that  is  for  Harvard  only  to  find  fault  with. 
If  he  ought  to  have  given  you  a  new  chance,  or,  if 
he  did  not,  should  have  refused  under  Rule  XII,  it 
does  not  affect  his  decision  that  Yale  only  w^as  in 
fault.  The  public  will  see  this  as  soon  as  a  public  ever 
does  anything,  —  in  time. l  .  .  . 

Affectionate  father, 

R.  H.  DANA,  JR. 

BOSTON,  Aug.  5,  1875. 
MY  DEAR  BOY,  — 

You  have  means  enough  [letters  of  introduction] 
for  seeing  the  upper  crust  of  England,  —  its  educated, 
wealthy,  and  governing  classes.  But  I  wish  you  to 
study  England  thoroughly,  in  its  lower  and  middle 
strata  as  well  as  the  upper.  If  you  see  only  those  to 
whom  you  have  letters,  you  will  make  it  but  a  pleas 
ure  trip.  It  will  be  like  taking  a  mince  pie  as  a  speci 
men  of  the  products  of  a  country.  I  wish  you  to  make/ 
acquaintance  of  some  dissenters,  some  republicans! 
some  of  the  manufacturing  and  working  classes,  and 
see  how  they  feel  and  think  and  talk.  It  is  right  to 
see  castles,  cathedrals,  colleges,  and  ruins,  and  know 
how  nobles  and  gentles  think  and  act,  but  you  must 

1  As  to  the  umpire,  he  was  a  professional  who,  we  were  told,  kept  a 
gymnasium  in  New  York  City,  which  some  of  the  Columbia  students 
frequented.  We  had  objected  to  his  appointment,  but  were  outvoted. 

As  to  his  decision,  he  held  Yale  responsible  for  the  foul.  That,  by 
Rule  XII,  should  clearly  have  entitled  us  to  have  the  race  rowed  over 
again,  omitting  Yale,  but  he  refused  Harvard's  claim  for  a  new  race, 
because  of  Rule  XIV,  which  states  that  "every  boat  shall  stand  by  its 
own  accidents  occurring  during  the  race."  The  referee  argued  that  the 
foul  was  not  Harvard's  fault  and  was  therefore  its  "accident."  Of 
course,  the  words  "own  accident"  in  that  rule,  meant  an  accident 
wholly  one's  own,  such  as  breaking  an  oar. 


486  RICHARD   HENRY  DANA,  JR. 

not  leave  the  other  undone.  I  wish  you  to  see  two 
things  I  have  never  seen,  the  mines  and  the  manu 
facturing  towns.  You  must,  now  or  next  year,  get 
admission  to  a  coal  and  a  copper  mine,  and  see  how 
the  miners  live  and  work,  and  visit  one  or  two  great 
hives  of  manufacturing  towns,  as  Manchester,  New 
castle,  Wolverhampton.  You  should  also  see  some 
thing  of  the  way  in  which  farm  laborers  live,  on  the 
worst  as  well  as  on  the  best  estates. 

You  will,  of  course,  attend  all  the  debates  in  Lords 
and  Commons  that  you  can,  and  hear  some  jury 
trials.  There  will  be  trials  at  Guildhall,  or  wherever 
the  City  Assizes  are  held,  and  in  the  country.  Also, 
give  a  day  or  two  to  the  county  courts,  held  by  one 
judge,  and  see  how  the  parties  there  enter,  and  are 
summoned,  then  their  cases  tried  without  counsel. 
The  tenure  of  lands,  the  rights  of  tenants  and  farmer, 
and  the  condition  of  farm  laborers  are  one  great 
question  in  England,  and  the  education  of  the  poorer 
classes  is  another. 

The  Abbey,  St.  Paul's,  Temple,  Tower,  Mansion 
House,  Bank,  Exchange,  Whitehall,  Parliament 
Houses,  Westminster  Hall,  National  Gallery,  (Tra 
falgar  Sq.),  British  Museum,  South  Kensington 
Museum  and  its  appendages  (two  days,  at  least), 
Crystal  Palace,  Zoological  Gardens,  St.  Barnabas, 
All  Saints,  Margaret  Street,  St.  Clement  Danes, 
(Dr.  Johnson's),  and  some  other  of  Wren's  churches 
are  things  I  now  think  of,  without  looking  at  any 
book.  See  also  Lincoln's  Inn,  Doctors'  Commons, 
and  the  Heralds'  College. 

Good-bye,  my  dear  son. 

Your  affectionate  father, 

R.  H.  DANA,  JR. 


LETTERS  FROM  A  FATHER  TO  A  SON   487 

BOSTON,  July  12,  1875. 
MY  DEAR  SON,  - 

I  intend  to  send  you  the  Nations.  They  will  keep 
you  well  up  in  American  affairs. 

Again,  my  dear  boy,  I  advise  you  to  keep  a  diary, 
on  sheets  of  paper,  sending  them  home  by  each  mail, 
putting  in  it  nothing  you  are  not  willing  all  should 
read.  We  will  see  the  sheets  numbered  and  kept. 
They  will  be  a  comfort  in  after  years,  as  well  as  a 
convenience.  This  will  also  save  you  a  great  deal  of 
trouble  in  writing  home.  The  diary  will  go  round  and 
satisfy  all.  Then  you  can  write  a  short  note  to  any 
of  us  for  particulars.  Don't  try  to  express  feelings, 
or  describe  fully,  for  it  will  become  a  bore,  you  will 
get  behindhand.  Send  something  off  once  a  week. 
When  you  get  into  company,  —  as  dinner,  breakfast, 
etc.,  —  give  names  of  all  present. 

I  do  hope  you  are  now  done  with  boating.  Of 
course,  you  will  wish  to  see  something  of  the  British 
systems,  in  order  to  benefit  the  Harvard  general 
system  of  boating,  but  I  hope  you  will  dismiss  it  from 
your  thoughts,  and  give  yourself  to  the  study  of  the 
political  and  social  conditions  of  the  countries  you 
visit,  and  the  conversation  of  the  most  intelligent 
men  and  women,  and  to  the  great  works  of  art,  in 
architecture,  painting,  and  sculpture,  and  the  his 
toric  monuments.  You  have  a  noble  opportunity. 
Make  the  most  of  it !  Do  not  begrudge  expense,  when 
it  enables  you  to  see  things  or  persons  worth  seeing 
and  knowing,  and  make  a  set-off  in  lodgings,  table, 
wines,  and  purchases  of  matters  of  taste.  That  is 
the  way  Sunnier  did.  He  saw  everybody  and  every 
thing  worth  seeing  and  knowing,  and  lived  humbly 


488  RICHARD  HENRY  DANA,  JR. 

and  avoided  the  company  of  aimless,  money-spending 
youth.  .  .  .  You  must  do  all  you  can  to  fit  yourself 
tfor  the  career  of  a  jurist  and  statesman,  so  that  it 
shall  not  be  your  fault  if  you  are  unemployed.  .  .  . 

Don't  let  anything  drive  you  from  your  plan  of 
spending  weeks  in  Paris,  in  learning  to  speak  and 
write  French  with  all  the  ease  possible.  Take  a  tutor, 
who  will  talk  with  you  and  read  aloud  to  you  and 
make  you  read  and  write.  Get  a  good  tutor.  It  will 
be  the  best  investment  you  ever  made.  .  .  . 

When  you  see  any  persons  to  whom  I  introduce 
you,  take  care  to  say  all  you  can  as  to  my  feelings 
about  them,  etc.     God  bless  you  my  dear  son. 
Your  affectionate  father, 

R.  H.  DANA,  JR. 

MANCHESTER,  July  18, 1875. 
MY  DEAR  SON,  - 

.  .  .  You  must  not  mind  an  anxious  father  suggest 
ing  little  things  for  your  correction,  —  I  mean,  you 
must  mind,  but  not  be  annoyed.  [Then  follows  a  series 
of  suggestions  on  matters  of  manners,  carriage,  etc.] 
I  have  only  a  natural  desire  to  see  you  perfect.  I  have 
confidence  that  you  wflTTTcT'nght "and  best  possible 
in  the  weightier  matters,  of  mind,  religious,  scientific, 
political,  legal,  and  social  study. 

Affectionate  father, 

R.  H.  D.,  JR. 

INTERVALE  HOUSE,  NORTH  CONWAY, 
Aug.  26,  1875. 

MR.  R.  H.  DANA,  3o. 

MY  DEAR  SON,  - 

We  are  so  affected  by  your  having  struggled  to 
write  your  journal  up  to  time  that  we  regret  all  the 


LETTERS  FROM  A  FATHER  TO  A  SON   489 

censures  we  put  upon  you  for  your  delays.  We  have 
received  the  sheets  up  to  and  including  Aug.  9th  at 
Birmingham,  and  your  letter  from  that  place. 

I  have  letters  from  Harcourt1  and  Phillimore,2 
both  of  whom  speak  of  you  in  the  kindest  terms.  I 
can  truly  congratulate  you  on  your  social  success. 
It  has  been  of  the  highest  order.  As  fashion,  I  care 
nothing  about  it.  But  as  part  of  a  liberal  education, 
it  is  a  great  privilege  to  have  seen  and  conversed  with 
the  leading  men  and  women  of  an  empire,  on  familiar 
terms,  at  the  beginning  of  life.  While  it  is  true  that 
your  introductions  opened  the  doors  to  you,  you 
would  not  have  been  invited  so  often,  and  had  so 
much  done  for  you,  if  you  had  not  made  a  favorable 
impression  by  your  intelligence  and  manners. 

I  send  or  shall  send  letters  to  Bancroft  Davis,  our 
Minister  at  Berlin,  and  to  Mr.  Marsh,  our  Minister 
at  Rome.  D.  is  son  of  George  D.  of  Massachusetts, 
and  nephew  of  George  Bancroft.  Marsh  you  know 
about.  If  I  write  to  Chabrol,  he  was  a  guest  of  mine, 
breakfasted  with  us  to  meet  Agassiz  et  a/.,  and  a 
young  gentleman  of  the  highest  character  and  finest 
manners.  I  think  he  is  a  Legitimist.  He  is  a  member 
of  the  Assembly. 

Kapnist  I  saw  a  good  deal  of  years  ago,  in  Boston. 
He  was  often  at  my  house,  —  a  very  clever  man, 
in  the  employ  then  of  the  Russian  Government. 
His  subject  was  political  administration,  including 
judicial.  I  believe  his  failing  is  that  while  he  learns 
everything  he  does  nothing. 

1  Sir  William  Vernon  Harcourt. 

2  Sir  Robert  Phillimore,  Bart.,  writer  on  international  law,  admiralty 
judge,  etc. 


490  RICHARD  HENRY  DANA,  JR. 

Calvo  *  has  published  an  International  Law.  Blunt- 
schli  is  a  leading  author  on  International  Law.  .  .  . 
Your  affectionate  father, 

R.  H.  DANA,  JR. 

MANCHESTER-BY-THE-SEA, 

Oct.  1,  1875. 
MY  DEAR  BOY,  - 

Your  letter  to  your  mother,  in  which  you  express, 
so  pathetically,  the  pain  my  first  letter  gave  you,  and 
showed  how  you  took  to  heart  the  censure  I  put  upon 
you  for  not  writing  us  oftener,  really  gave  me  com 
punctions.  Your  mother  and  sisters  say  that  when 
I  think  any  one  in  fault,  I  use,  in  writing,  more  severe 
terms  than  I  am  aware  of.  I  dare  say  this  is  true. 
But  in  extenuation  it  is  to  be  said  that,  after  your 
first  letter,  from  Fenton's,  we  had  heard  nothing 
from  you  for  two  weeks.  Then  I  knew  that  you  did 
not  like  writing  letters,  and  was  aware  that  youth 
rarely  credit  how  much  their  parents  depend  upon 
them  for  their  comfort  and  satisfaction.  But  you 
have  been  so  very  considerate  and  faithful  ever  since, 
in  your  letters  and  postals,  and  have  sent  your  jour 
nals  so  punctually,  and  so  fully  written,  that  I  feel 
like  reproaching  myself  for  having  given  you  any 
pain  or  discomfort.  As  I  have  before  told  you,  your 
journals  hit  a  good  mean  between  bareness  and  such 
fullness  as  may  make  them  a  toil  to  you.  Your  In- 
veraray  journal  was  excellent,  and  has  been  read  by 
all  your  family  with  great  satisfaction  and  delight. 
Especially  to  those  who  have  not  been  abroad,  it 
reads  like  a  novel.  .  .  . 

I  have  written  to  Sir  W.  V.  Harcourt,  Sir  R.  Philli- 

1  Carlos  Calvo,  writer  on  history  and  international  law;  born  1824. 


LETTERS  FROM  A  FATHER  TO  A  SON   491 

more,  and  especially  to  Lord  Spencer,  thanking  them 
for  their  attention  to  you.  Perhaps  I  may  do  the 
same  to  the  Argylls. 

Some  one  asked  one  of  your  classmates,  or  your 
schoolmates,  Thomas,  if  these  things  might  not  turn 
your  head,  to  which  he  replied,  "Oh,  no!  Dick  is  n't 
that  Fort  of  a  fellow,  at  all."  I  was  greatly  pleased 
to  hear  that,  and,  my  dear  son,  I  believe  it  to  be  true. 

I  am  truly  glad  you  liked  the  Kinnairds  so  much, 
and  that  Lord  Coleridge  and  Lord  Tenterden  were 
so  attentive  and  instructive,  and  I  am  particularly 
pleased  by  your  visit  to  Sir  John  Taylor  Coleridge  at 
Ottery  St.  Mary's.  He  has  always  been  one  of  my 
best  friends,  and  is  as  good  an  example  as  you  can 
find  of  the  Christian  gentleman.  .  .  . 

I  am  now  greatly  interested  to  see  how  you  are 
affected  by  France.  Let  me  repeat  my  hope  that  you 
will  give  full  time  to  the  speaking  and  writing  of 
French,  and  not  leave  Paris  until  you  are  able  to  talk 
French  with  ease,  and  to  understand  Frenchmen  when 
talking  to  one  another,  however  long  it  may  take  you, 
and  whatever  it  may  cost.  .  .  . 

361  BEACON  ST.,  Oct.  11,  1875. 
MY  DEAR  BOY,  - 

I  meant  to  have  you  live  in  a  French  family,  where 
only  French  is  spoken,  and  have  a  French  tutor.  And 
pray  eschew  English  and  Americans.  In  Italy  and 
Germany  they  will  do  you  no  harm,  for  you  will  not 
try  to  speak  Italian  or  German;  yet,  even  in  those 
countries,  I  trust  you  will  associate  as  much  as  pos 
sible  with  the  people  of  the  country.  There  is  a 


492  RICHARD  HENRY  DANA,  JR. 

pleasure  in  meeting  American  friends,  and  especially 
college  friends  and  Boston  people,  but  I  look  to  you 
to  show  the  strength  of  purpose  to  be  very  sparing  of 
intercourse  with  the  best  of  them.  You  are  on  a 
course  of  study  and  work,  and  must  stick  to  it.  ... 

Make  the  utmost  of  your  French  introductions, 
read  the  French  journals,  and  get  your  ear  used  to  it; 
but  the  tutor  is  the  one  indispensable  thing.  .  .  . 

If  I  enclose  a  letter  to  M.  Duvergier  de  Hauranne, 
know  that  he  is  of  rank  and  old  descent,  and  was  a 
good  deal  at  our  house  in  Cambridge,  and  wrote  a 
book  on  America,  which  he  sent  to  me. 

Your  affectionate  father, 

R.  H.  DANA,  JR. 

BOSTON,  Oct.  22,  1875. 
MY  DEAR  BOY,  - 

Your  journals  are  greatly  prized  by  us.  You  work 
easier,  as  a  new  ship  does  after  a  little  sailing,  and  I 
hope  it  is  less  trial  to  you  to  write.  If  you  knew  how 
eagerly  they  are  looked  for  and  read  by  us,  and  then 
by  Rutland  and  Wethersfield  and  Sally,  it  would 
encourage  you  in  writing  them.  I  am  glad  you  have 
met  Mohl 1  and  Marmier.  I  do  hope  you  will  see  the 
Calvos,  pere  et  fils,  and  especially  Chabrol.  I  wish  I 
had  felt  authorized  to  give  you  a  letter  to  Labou- 
laye.  .  .  . 

You  must  excuse  my  apparent  censures,  for  it  is 
all  done  from  my  intense  interest  in  you,  and  devo 
tion  to  your  welfare. 

Your  devoted  father, 

R.  H.  D.,  JR. 

1  M.  Mohl,  a  member  of  the  Academy.  Mme.  Molil  kept  up  the 
last  of  the  "Salons"  at  Rue  de  Bee. 


LETTERS  FROM  A  FATHER  TO  A  SON   493 

BOSTON,  Nov.  1,  1875. 
MY  DEAR  SON,  - 

Your  letters  and  journals  are  so  punctual  and  faith 
ful  that  we  hardly  know  how  to  express  to  you  the 
pleasure  and  comfort  they  give  us.  This  is  delightful 
to  us  and  useful  to  you,  for  it  is  to  you  a  good  lesson 
in  writing,  and  your  style  is  working  loose,  and  becom 
ing  so  easy  that  we  feel  sure  that  the  writing  of  the 
journals  is  not  distressing  to  you. 

Your  last  two  journals  put  you  just  where  I  wished 
you  to  be,  and  satisfy  me  fully,  —  in  a  good,  well- 
educated  French  family,  with  a  daily  tutor  besides, 
and,  as  you  say,  your  lessons  in  painting  are  lessons 
in  French. 

I  greatly  regret  that  you  have  not  seen  Laugel.1 
No  man  in  Paris  could  be  more  useful  to  you.  He  is 
a  writer,  private  secretary  to  the  Due  d'Aumale,  and 
his  wife  one  of  the  cleverest  of  women.  And  I  wish 
you  could  have  seen  le  Viscomte  de  Chabrol.  When 
in  America,  he  was  the  best  possible  specimen  of  a 
young  noble.  It  was  he  who,  at  our  house,  insisted 
in  giving  the  pas  to  Agassiz,  and  when  A.  said,  "I 
recognize  your  rank,"  replied,  "What  have  I  to  offer 
to  merit  but  my  rank?" 

Hear  some  French  preachers.  (Chabrol  is  a  member 
of  the  Assembly.) 

Was  it  not  amusing  to  hear  Frenchmen  express  the 
opinion  that  Bismarck  is  overrated? 

Your  affectionate  father, 

R.  H.  D.,  JR. 

1  I  saw  M.  and  Mme.  Laugel  later. 


494  RICHARD   HENRY  DANA,  JR. 

BOSTON,  Nov.  9,  1875. 
MY  DEAR  BOY,  - 

I  am  glad  you  are  to  stay  in  Paris  through  Novem 
ber.  Indeed,  I  do  not  care  how  far  into  November 
you  stay,  for  you  will  gain  faster  in  your  French 
every  day  after  the  first  four  or  six  weeks.  And  you 
do  not  know  how  invaluable  it  will  be  to  you  in  the 
Levant,  Egypt,  Constantinople,  Greece,  and  the 
Adriatic.  Besides,  I  look  to  the  future.  If  you  get 
familiar  with  French,  you  will  keep  it  up,  and  be 
able  to  use  it  later  in  life,  when  knowledge  of  it  may 
be  of  great  service  to  you. 

In  my  last,  I  sent  you  a  letter  to  Mr.  Marsh,  and 
will  send  one  to  General  Stone  in  Egypt.  I  will  get 
your  mother  and  sisters  to  write  you  about  Avignon, 
Nismes,  and  Aries,  which  must  be  seen,  at  least  two 
of  them.  Then,  if  you  go  by  way  of  Lyons,  try  to  see 
the  French  manufacturing  systems  at  work,  and  go 
up  the  hill  of  Fourvieres,  which  Everett  says  has  no 
superior  in  Europe  for  view. 

The  late  elections  bring  the  Republicans  back,  so 
that  the  Presidential  election  is  a  neck  and  neck 
matter,  and  both  parties  are  on  their  good  behavior, 
-  which  is  the  best  state  of  things  possible. 
Your  affectionate  father, 

R.  H.  D.,  JR. 

BOSTON,  December  15,  1875. 

MY  DEAR  SON,  — 

Your  French  journals  have  interested  me  extremely, 
for  I  do  feel  sympathy  with  the  French  and  hope  for 


LETTERS  FROM  A  FATHER  TO  A  SON   495 

their  future,  and  much  that  you  tell  us  of  them  is  new, 
while,  in  England,  most  was  familiar.  I  knew  you 
would  like  and  value  Laugel.  M.  Marmier 1  has  been 
very,  very  kind  and  attentive.  A  virtuous,  kind 
Frenchman  is  a  very  attractive  person. 

Make  the  most  of  Mr.  Marsh,  and  he  will  get  you 
into  the  Italian  Parliament,  and  introduce  you  to 
political  leaders,  who  usually  speak  French  if  not 
English.  Everything  historical,  in  art  and  architec 
ture  and  monuments,  will  interest  you  deeply  in 
Rome,  and  so  will  all  art,  but,  at  the  same  time,  try 
to  learn  what  you  can  of  present  Italy,  social,  political, 
and  religious.  Minghetti's  speech  shows  that  they 
have  got  hold  of  the  "Alt  Catholic"  idea  that  the 
contest  is  with  the  Curia  and  not  with  the  Church 
Catholic. 

We  have  just  had  a  great  municipal  triumph. 
Cobb  has  made  an  excellent  mayor,  and  received  an 
address  from  some  twenty-five  hundred  of  our  best 
citizens  asking  him  to  serve  again.  The  lower  element 
combined  against  him,  in  the  interest  of  ring  rule, 
and  raised  a  good  many  popular  war-cries  against 
him.  They  succeeded  in  carrying  both  political 
conventions.  Their  candidate  was  a  young  lawyer, 
named  Halsey  I.  Boardman,  a  Republican,  of  no 
professional  standing,  but  of  considerable  munici 
pal  experience  in  the  Common  Council,  etc.,  a  light 
weight,  of  no  character,  and  ready  for  ring  rule.  The 
Republican  Convention  nominated  him  by  one  ma 
jority,  and  the  Democratic  by  a  very  large  ma 
jority,  on  an  arrangement  dividing  all  offices,  as 

1  A  member  of  the  Academy  and  a  friend  of  Longfellow. 


496  RICHARD  HENRY  DANA,  JR. 

aldermen,  etc.,  between  the  parties.  It  was  the  most 
ominous  thing  that  has  happened  in  our  municipal 
affairs.  All  bad  men  seemed  in  it,  and  a  good  many 
respectable  Democrats  and  Republicans  were  influ 
enced  by  the  obligation  of  regular  nominations.  The 
"Citizens"  held  a  meeting  of  about  two  hundred 
selected  men,  and  made  out  a  general  ticket  of  Re 
publicans  and  Democrats  with  Cobb  at  the  head,  and 
organized  war  in  each  ward,  and  the  young  men  took 
hold  with  vigor  and  tact.  It  was  a  fair  trial  of  strength 
between  good  government,  order,  respectability,  and 
property  on  the  one  side,  and  the  lowest  elements, 
aided  by  politicians  and  wire-pullers  and  mere  parti 
sans,  on  the  other. 

The  election  was  yesterday.  We  threw  the  largest 
vote  ever  thrown  in  a  city  election,  and  Cobb  is  re- 
elected  by  a  majority  of  nearly  three  thousand,  and 
the  Citizens'  ticket  for  aldermen,  school  board,  etc., 
by  nearly  the  same. 

This  is  a  striking  result,  and  most  encouraging, 
when  we  consider  that  Boardman  had  the  regular 
nomination  of  both  parties.  It  is  also  encouraging 
that  every  newspaper  in  Boston  supported  Cobb 
except  the  Globe,  which  is  erratic  and  Butlerized. 
Our  new  ward,  No.  11,  gave  Cobb  the  largest  major 
ity,  nearly  eleven  hundred.  It  embraces  all  between 
Arlington  Street,  Columbus  Avenue,  and  the  Charles 
River.  Roger  Wolcott  was  an  inspector,  and  I  saw 
several  of  your  friends  acting  as  vote-distributors. 
The  merchants  say  the  result  is  worth  millions  to 
Boston.  It  proves  that  Boston  can  be  relied  upon. 

Your  affectionate  father, 

R.  H.  D.,  JR. 


LETTERS  FROM  A  FATHER  TO  A  SON   497 

BOSTON,  Jan.  30,  1876. 
MY  DEAR  BOY,  - 

Your  letter  and  journal  were  dated  at  Palermo,  and, 
as  you  were  thence  to  go  to  Athens,  we  must  expect  a 
long  interval  before  hearing  again. 

I  have  taken  great  satisfaction  in  your  journals  in 
the  south  of  France,  Italy,  and  Sicily,  for  I  feel  that 
all  you  see  there  must  be  so  much  more  novel  and 
strange  to  you  than  Great  Britain  and  even  France, 
especially  as  I  have  never  been  in  the  south  of  France, 
or  over  the  Cornice  Road,  or  in  Genoa  or  Leghorn, 
Naples  or  Sicily. 

I  was  glad  to  have  you  recognize  so  fully  the  advan 
tage  your  French  was  to  you.  You  know  how  stoutly 
and  persistently  I  fought  for  my  plan  of  having  you 
devote  some  weeks  to  talking  French,  against  a  good 
deal  of  discouragement.  Many,  even  Lowell  [James 
R.],  seemed  to  think  a  few  weeks  would  not  do  much 
for  you.  I  know  that  six  or  eight  weeks'  devotion  to 
French,  in  a  good  French  family,  to  a  person  as  far 
advanced  as  you  were,  made  just  the  difference  be 
tween  your  speaking  French,  or  not  trying  to  speak 
it,  all  over  Europe.  It  is  the  first  strokes  in  swim 
ming.  If  a  man  can  really  swim  six  strokes,  he  will 
venture  into  deep  water,  and  swim  better  and  better, 
while  if  he  cannot  really  swim  consecutive  strokes,  he 
will  keep  in  shoal  water.  I  hope  you  will  keep  up 
your  French  all  the  time  you  are  on  the  Continent, 
by  talking,  reading,  and  writing. 

Your  journals  improve  in  ease  and  fulness.  The 
writing  them  is  a  good  rhetorical  exercise  for  you,  the 
best,  and  "La  sempre  fedelissima"  will  always  see 
to  your  spelling,  which  candor  compels  me  to  say 
needs  a  good  deal  of  seeing  to. 


498  RICHARD   HENRY  DANA,  JR. 

You  are  observant  of  nature,  science,  and  art,  - 
of  things  that  stimulate  inquiry  and  reasoning,  but 
you  are  not  observant  of  things  otherwise.  You  must 
try  to  cultivate  more  attention  to  sounds  and  words 
and  names.  You  must  try  to  remember  the  names  of 
persons  and  places,  and  notice  how  they  are  pro 
nounced.  The  right  pronunciation  and  application 
of  proper  names  is  one  of  the  marks  of  an  educated 
man.  .  .  . 

Your  affectionate  father, 

R.  H.  D.,  JR. 

361  Beacon  St.,  BOSTON, 

Friday,  Feb.  20,  1876. 

MY  DEAR  SON,  — 

...  I  commend  your  spirit  in  taking  second-class 
passage,  but  I  would  not  do  it  in  steamers.  There,  the 
distinction  is  great,  marked,  and  shuts  you  off  from 
all  intercourse  with  the  other  passengers.  On  railways 
there  is  no  objection  to  it.  ... 

Your  Athens  journal  is  intensely  interesting.  It 
is  a  vision  of  -  -  not  romance,  but  long  ago  reality 
of  the  noblest  kind.  And  are  you  not  glad  you  read 
so  much  Greek  in  college? 

I  am  glad  you  went  to  Egypt.  It  is  too  curious  to 
be  lost,  and  is  losing  its  old-world  characteristics 
fast.  .  .  . 

Don't  give  up  an  important  matter  of  instruction 
or  feeling  for  a  small  saving.  Save  rather,  as  you  have 
done,  in  walking,  boarding  cheap,  in  plain  dress,  and 
in  buying  nothing  merely  ornamental,  and  nothing 
in  the  way  of  art,  however  beautiful.  .  .  . 
Your  affectionate  father, 

R.  H.  D.,  JR. 


LETTERS  FROM  A  FATHER  TO  A  SON   499 

BOSTON,  March  28, 1876. 
MY   DEAR 

I  suppose  tKe  vote  this  evening  will  be  against  me. 
I  have  no  hope  of  confirmation.  The  combination  of 
Cameron  and  Morton,  the  two  leaders  of  the  Com 
mittee,  in  the  Senate,  and  of  Butler  and  Beach  Law 
rence  outside  the  Senate,  and  the  readiness  of  the 
Democrats  to  vote  so  as  most  to  trouble  the  Admin 
istration  will  be  too  much  for  the  gentlemen  "out 
side  politics."  .  .  . 

I  should  have  liked  the  rest,  leisure,  and  dignity 
of  the  jppst,  and  the  chance  it  would  have  given  me 
to  study  international  law,  and  the  change  of  life 
for  me  and  your  mother.  "But  a  Disposer  whose 
power  we  are  little  able  to  resist,  and  whose  wisdom 
it  behooves  us  not  at  all  to  dispute,  has  ordained  in 
another  manner,  and  whatever  our  querulous  weak 
ness  may  suggest,  a  far  better." 

The  conduct  of  the  Committee  Mr.  Fish  calls,  in 
a  letter  to  me,  "scandalous,"  and  in  a  letter  to  Judge 
Hoar  by  a  harder  name.  The  press  and  the  people 
have  confirmed  the  nomination,  whatever  the  Senate 
may  do.  Mr.  Fish  says  that  no  nomination,  for  years, 
has  been  received  by  the  people  so  well.  It  has  been 
defeated  by  the  vile  Cameron,  whom  Lincoln  dis 
missed  from  the  War  Department  for  fraud,  the  in 
famous  Butler,  the  unscrupulous,  vindictive  Beach 
Lawrence,  acting  through  secret  committees  and 
secret  sessions. 

Don't  let  this  make  you  any  the  less  patriotic.  Iti 
only  shows  you  how  much  more  the  country  needs, 

1  In  the  United  States  Senate,  on  confirmation  of  his  appointment 
as  Minister  to  England.  See  Biography,  vol.  ii,  pp.  362-377. 


500  RICHARD  HENRY  DANA,  JR. 

the  services  of  good  men,  —  how  much  the  rising 
generation  has  to  do  for  their  state. 
Good-bye,  my  dear  boy. 

Your  affectionate  father, 

R.  H.  DANA,  JR. 

Did  you  [see]  the  spontaneous  request  of  nearly 
all  the  members  of  both  branches  of  the  Legislature, 
Speaker,  President  of  Senate,  all  judges  and  ex-judges, 
mayors  and  ex-mayors,  and  citizens  of  all  parties,  for 
my  confirmation?  It  was  wonderful ! 


BOSTON,  April  30, 1876. 
MY  DEAR  SON,  — 

Last  week  we  had  a  State  Republican  Conven 
tion,  as  you  see  by  the  Daily  Advertiser  I  sent  you. 
The  result  was  perfect.  The  Butler,  Custom-House, 
machine  men  did  their  utmost  to  defeat  me.1  They 
went  so  far  as  to  put  Judge  Hoar,  their  constant 
enemy,  on  their  ticket.  The  only  effect  was  to  give 
Judge  Hoar  some  sixty  or  eighty  votes  more  than  I 
had,  while  I  had  some  two  hundred  more  than  was 
necessary  for  a  choice,  and  far  ahead  of  all  others. 
It  was  a  decided  rebuke  to  the  Senate,  for  Hoar  and 
I  had  each  been  rejected  by  the  Senate,  and  an  utter 
defeat  of  the  Butler  gang.  Think  of  four  such  men 
as  Hoar  and  I,  President  Chadbourn  (Williams  Col 
lege),  and  John  M.  Forbes,  sent  with  full  powers  and 
authority  to  fill  our  own  vacancies,  and  no  instruc 
tions  ! 

1  As  delegate  at  large  from  Massachusetts  to  the  Republican  Presi 
dential  Convention  of  1876. 


LETTERS  FROM  A  FATHER  TO  A  SON   501 

Massachusetts  heads  the  column.    Her  delegates-; 
are  "reformers,"  and  known  to  be  pledged  to  no  manj 
and  with  no  axes  to  grind,  and  claiming  no  Massa^ 
chusetts  man  for  any  post. 

Your  affectionate  father, 

R.  H.  D.,  JR. 


BIBLIOGRAPHY 

[The  following  are  the  more  important  of  Mr.  Dana's  publications,  including  in  a  very  few 
instances  publications  by  others,  to  which  Mr.  Dana's  were  a  reply,  omitting,  however,  Mr.  Dana's 
briefs  and  arguments  in  law  cases,  unless  they  were  of  unusual  public  interest.  In  some  cases,  the 
original  publications  do  not  state  that  Mr.  Dana  is  the  author;  but  in  every  instance  in  which  such 
are  included  in  this  list,  we  have  evidence  in  the  handwriting  of  Mr.  Dana  or  of  his  father,  or  of 
both,  and  sometimes  other  corroborative  evidence  of  the  authorship.  Copies  of  many  such  of  the 
following  as  are  in  pamphlet  form,  and  are  not  printed  in  the  preceding  collection,  may  be  found  in 
the  Congressional  Library,  Washington,  D.  C.,  the  Harvard  College  Library,  the  Boston  Athenaeum, 
and  in  the  public  libraries  of  Boston,  New  York,  Chicago,  San  Francisco  and  Los  Angeles.  — 
R.  H.  D.,  3d.] 

1839 

CRUELTY  TO  SEAMEN:  Case  of  Nichols  &  Couch.  In  American  Jurist,  October, 
1839,  pp.  92-107;  Life  and  Letters  of  Judge  Story,  vol.  ii,  pp.  312-316 
(Little,  Brown  &  Co.,  Boston,  1851,  2  vols.).  Also  in  pamphlet  form  without 
author's  name. 

1840 

Two  YEARS  BEFORE  THE  MAST.  (Harper  Brothers,  New  York,  1840).  Author's 

Edition,  with  chapter  "Twenty-four  Years  After,"  Houghton,  Mifflin  &  Co. 

At  least  52  Editions  by  31  Publishers  in  U.  S.,  Gt.  Britain,  and  Europe.   See 

Adams's  Life  of  Dana,  vol.  i,  pp.  25-27. 
SEAMAN'S  FRIEND  SOCIETY,  Remarks  before.  In  Mercantile  Journal,  Boston, 

May  28;  Boston  Courier,  May  29;  Boston  Recorder,  June  5. 

1841 

SEAMAN'S  FRIEND:  Treatise  on  Practical  Seamanship.  Boston,  Thomas  Groom, 
12mo;  Little,  Brown  &  Co.,  16mo.  Published  in  England  under  title,  Sea 
man's  Manual:  London,  Philip  Moxon,  1841  (8vo),  1856,  1859,  1867;  and 
by  Lees  Philip  &  Son  (8vo),  1856. 

SEAMAN'S  FRIEND  SOCIETY  IN  NEW  YORK,  Address  before,  on  May  10.  In  New 
York  Herald,  May  11;  Boston  Recorder,  May  28. 

FUGITIVE  SLAVE  RESCUE  CASE:  John  Torrance,  or  Massachusetts  vs.  Higgins. 
In  Boston  Daily  Mail,  June  7. 

1842 

CHARLES  DICKENS  DINNER,  Remarks  at.  In  Boston  Advertiser,  February  3; 
New  England  Weekly  Review,  Hartford,  Conn.,  February  12. 

1843 

SOMERS  MUTINY,  First  Letter  on,  dated  January  10.  In  New  York  Evening 

Post,  January  12  or  13;  Boston  Atlas,  January  17;  Halifax  Nova  Scotian, 

April  10;  Adams's  Life  of  Dana,  vol.  i,  pp.  47-58. 
SOMERS  MUTINY,  Second  Letter  on.  In  Boston  Courier,  August  18. 
SOMERS  MUTINY,  Third  Letter  on.   In  Boston  Semi- Weekly  Courier,  August 

81. 
WASHINGTON  ALLSTON,  Note  Denying  Truth  of  Anecdotes  about.    In  Boston 

Atla*.  July  22. 


504  BIBLIOGRAPHY 

1844 

GOTHIC  ARCHITECTURE.   In  Boston  Daily  Advertiser  &  Patriot. 

VISIT  TO  MOUNT  VERNON.  In  Boston  Daily  Advertiser  &  Patriot,  April  9. 

JUSTICE  TO  THE  POOR,  THE  STRANGER  AND  THE  SUSPECTED.  In  Boston  Daily 
Advertiser  &  Patriot,  July  22. 

ALLSTON'S  BELSHAZZAR'S  FEAST.  In  Boston  Daily  Advertiser  &  Patriot,  Sep 
tember  27. 

EPISCOPAL  GENERAL  CONVENTION  AT  PHILADELPHIA,  Summary  of.  In  Boston 
Semi- Weekly  Advertiser,  November  2. 

ARCHITECTURE.  In  Boston  Courier,  November  5. 

1845 

BISHOP  ONDERDONK'S  TRIAL.  In  Boston  Evening  Transcript,  April  5. 

SEAMEN  IN  THE  CHURCH:  First  Letter.  In  Christian  Witness  &  Church  Advo 
cate,  May,  p.  47. 

SEAMEN  IN  THE  CHURCH:  Second  Letter.  In  Christian  Witness  &  Church 
Advocate,  May,  p.  55. 

AMERICAN  LOYALTY:  Lecture  at  Music  Fund  Hall,  Philadelphia.  In  TJ.  S. 
Gazette,  December  10.  Pennsylvania  Inquirer  &  National  Gazette,  Decem 
ber  10  (This  is  the  notice  alluded  to  in  the  Biography,  vol.  i,  p.  115). 

ADVENT  PARISH  AND  BISHOP  EASTBURN.  In  Boston  Evening  Transcript,  De 
cember  20. 

CHURCH  OF  THE  ADVENT  AND  MR.  POLLARD.  In  Boston  Evening  Traveller, 
December  22. 

BISHOP  EASTBURN  AND  HIS  CLERGY.  In  Boston  Evening  Transcript,  December 
23;  Christian  Watchman,  January  2,  1846. 

1846 

CHURCH  OF  THE  ADVENT,  Position  of.  In  The  Churchman,  January  24. 
CHURCH  OF  THE  ADVENT.  In  Boston  Evening  Transcript,  December  11. 

1847 

VINTON,  MAJOR  JOHN  R.,  Memoir  of.  In  North  American  Review  (American 

Review  &  Whig  Journal),  No.  30,  June,  pp.  594-602. 
PETITION  TO  CONGRESS  FOR  MORE  SPEEDY  TRIAL  OF  SEAMEN:  Leaflet  prepared 

by  R.  H.  Dana,  Jr. 

1848 

DISCOVERER  OF  ETHER.  In  Littell's  Living  Age,  No.  201,  March  18,  pp.  529-571. 
DISCOVERER  OF  ETHER,  Report  of  Massachusetts  General  Hospital  on:  Edited 

by  R.  H.  Dana,  Jr.,  with  Introduction.  8vo. 
SAME  TRANSLATED  INTO  FRENCH.   "Rapport  .  .  .  sur  le  Decouvert  d'Ether." 

8vo. 

ETHER  CONTROVERSY:  Various  Data.   12mo. 
FREE  SOIL  MEETING  IN  BOSTON,  July  7:  Remarks  on  Taking  the  Chair.    In 

Boston  Daily  Whig,  July  8;  Boston  Daily  Whig,  July  11. 
BUFFALO   FREE  SOIL  CONVENTION,  Speech  on.   In  Boston  Daily  Republican, 

October  12.   (Printed  in  this  collection.) 
FREE  SOIL  MEETING  AT  FANEUIL  HALL:  Speech  as  Presiding  Officer.  In  Boston 

Daily  Republican,  November  6. 

1849 

FREE  SOIL  RALLY,  TREMONT  TEMPLE:  Resolutions.    In  Boston  Daily  Repub 
lican,  November  12. 
NIPHON'S  CREW:  Argument  for  the  Seamen.  8vo,  12  pp. 


BIBLIOGRAPHY  505 

1850 

FIRST  IMPRESSIONS  OF  A  BAILOR.  In  Boston  Book,  1850,  Ticknor  &  Fields,  16mo, 
pp.  279-285. 

WASHINGTON  ALLSTON:  Lectures  on  Art  and  Poems.  Edited  with  Introduction. 
12mo,  Baker  &  Scribner,  N.  Y.,  1850. 

FREE  SOIL  MEETING  OF  FEBRUARY  27,  Call  for.  Leaflet  and  in  papers. 

FREE  SOIL.  CONVENTION  AT  FANEUIL  HALL  TO  SUSTAIN  THE  WILMOT  PROVISO, 
FEBRUARY  27.  Address  to  Members  of  Congress.  Quarto  sheet,  2^  pp.  In 
Boston  Semi- Weekly  Republican,  March  2,  p.  1.  (Printed  in  this  collection.) 

SPEECH  AT  THE  SAME.  In  Boston  Semi- Weekly  Republican,  March  3,  p.  2. 

WORCESTER,  Speech  at,  April  5.  In  Boston  Advertiser,  April  14. 

PROSCRIPTION  OF  R.  H.  DANA,  JR.,  Articles  calling  for.  In  Boston  Adver 
tiser,  May  10;  Advertiser  &  Courier,  June  2;  Transcript,  May  7,  13,  14,  15, 
16  and  19;  Commonwealth,  May  13,  16  and  30;  Daily  Advertiser,  June  £. 

FREE  SOIL  PLATFORM  ABANDONED  BY  THE  WHIGS:  Letter  on.  In  Boston  Daily 
Evening  Traveller,  August  17. 

FUGITIVE  SLAVE  LAW,  Faneuil  Hall  Meeting  on:  Preamble  and  Resolutions. 
In  Boston  Atlas,  October  15,  p.  2. 

FREE  SOIL  MEETING  AT  FANEUIL  HALL,  NOVEMBER  6:  Resolutions.  In  Boston 
Daily  Chronotype,  November  7. 

GREAT  GRAVITATION  MEETING:  Parody  on  the  Whigs  and  the  Fugitive  Slave 
Law.  In  New  York  Tribune,  November  22;  Boston  Chronotype,  November  26. 
(Printed  in  this  collection.) 

CHURCH  OF  THE  ADVENT:  Prescott  Defended  on  Heresy  Charges.  In  Boston 
Daily  Advertiser,  November  30;  Boston  Christian  Register,  December  14. 

1851 

FUGITIVE  SLAVE  RESCUE  TRIALS:  Defense  of  Charles  G.  Davis,  Esq.  Wright  & 
Potter,  Boston,  1851,  8vo,  pp.  23-37.  Closing  Argument,  Commonwealth 
and  Emancipator,  February  28  and  March  1.  In  Boston  Daily  Atlas,  February 
22;  Daily  Evening  Traveller,  February  21;  Boston  Daily  Commonwealth, 
February  27  and  28.  (Printed  in  this  collection.) 
ESSEX  RAILROAD  CASE:  Argument  before  the  Committee  of  the  Legislature. 

In  Boston  Daily  Commonwealth,  March  29. 
PERSONAL  LIBERTY  BILL:  Drawn  by  Charles  Sumner  and  R.  H.  Dana,  Jr.   In 

Boston  Daily  Commonwealth,  March  31. 
WORCESTER,  Address  on  "The  Times."    In  Worcester  Spy,  April  7;  Boston 

Daily  Commonwealth,  May  2;  Boston  Evening  Transcript,  May  16. 
FUGITIVE  SLAVE  CASE:  Thomas  Simes.    In  Boston  Daily  Evening  Traveller, 

April  11;  Semi- Weekly  Advertiser,  April  16;  Boston  Daily  Bee,  April  14. 
MYSTIC  RIVER  IMPROVEMENT:  Argument  before  Committee  of  Massachusetts 

Legislature,  April  17.  Pamphlet. 

GEORGE  S.  HILLARD,  UNDER  TITLE  "X":  Attack  on  R.  H.  Dana,  Jr.,  for  Wor 
cester  Speech.  In  Boston  Advertiser,  May  8,  10  and  12;  Boston  Daily  Com 
monwealth,  May  16. 

4 '  SIGMA."   In  Boston  Evening  Transcript,  May  7,  13  and  15;  see  also  do., 

May  14. 

HAVEN'S  LETTER.  In  Boston  Evening  Transcript,  May  19. 
EDITORIAL  ON  ATTACK.  In  Daily  Courier,  June  2;  Boston  Daily  Advertiser, 

June  2;  Boston  Daily  Commonwealth,  June  16  and  30. 
EDITORIAL  NOTE  ON  SAME,  AND  EXTRACTS.   In  New  York  Evening  Post, 

June  30. 

See  also  Boston  Commonwealth,  June  5;  New  York  Evening  Post,  July  1; 
Boston  Daily  Morning  Commonwealth,  July  2;  Boston  Daily  Evening 
Commonwealth,  July  10. 
HILLARD'S  ANSWER.  In  Boston  Advertiser,  July  11. 


506  BIBLIOGRAPHY 

ATTACK  ON  DANA  AND  OTHERS,  ADVISING  NOT  TO  EMPLOY,  ETC.,  BY  SON  OF  A 

MERCHANT.  In  Daily  Commonwealth,  June  5.  See  also  Daily  Commonwealth, 

June  16;  Weekly  Messenger,  July  30. 
FUGITIVE  SLAVE  RESCUE  TRIALS:  Rescue  of  Shadrach:  Scott  Case.  In  Daily 

Commonwealth,  June  5  and  6. 
FUGITIVE  SLAVE  RESCUE  TRIALS:  Hay  den's  Case,  Opening  Argument.  In  Daily 

Morning  Commonwealth,  June  12. 
FUGITIVE  SLAVE  RESCUE  TRIALS:  Shadrach:  Lewis  Hayden  Defense.  In  Boston 

Evening  Commonwealth,  June  16;  Boston  Evening  Traveller,  June  17. 
FUGITIVE  SLAVE  RESCUE  TRIALS:  Robert  Morris  Case.  In  Daily  Morning  Com 
monwealth,  June  19,  November  8  and  10. 
STORY,  Reminiscences  of  Judge  Joseph.  In  Life  and  Letters  of  Judge  Story,  vol. 

ii,  pp.  317-322. 
STORY   ASSOCIATION,   Address  at.    In  Boston  Morning  Commonwealth,  July 

17.  See  also  July  15  and  16. 
STORY  ASSOCIATION,  Speech  at  Dinner  of.    In  Boston   Advertiser,   July  21; 

Boston  Weekly  Messenger,  July  30. 
LIBEL  SUIT  vs.  THE  COMMONWEALTH.   In  Boston  Commonwealth,  September 

3-8. 
CHARLES    ADAMS  WHITCOMB,    Obituary  on.    In  Boston  Morning  Journal, 

October  23. 

ELIZABETH  EARL  COOKE,  Obituary  on.  In  Boston  Traveller. 
LEWIS  GRAY,  Obituary  on. 

1852 

ADVENT,  Parish  of:  Prescott  Heresy  Trial:  Argument.  Abstract  in  Boston 
Evening  Traveller,  February  12,  13,  14,  19  and  23;  New  York  Churchman, 
March  20.  Full  report  in  New  York  Churchman,  April  3.  Extract  covering 
full  statement  on  Dr.  Croswell,  in  Boston  Evening  Traveller,  April  19. 

LITERARY  SOCIETIES  OF  GENEVA,  N.  Y.,  Address  before.  In  Geneva  Courier, 
July  16;  Geneva  Gazette,  July  16;  Geneva  Gazette,. July  21.  Extract  in 
Boston  Evening  Transcript,  September  10. 

WASHINGTON  ALLSTON:  Lectures  on  Art  and  Poems.  12mo.  Edited  by  R.  H. 
Dana,  Jr. 

1853 

HORACE  BINNEY  WALLACE,  Obituary  on.    In  Law  Reporter,  March,  N.  S«, 

vol.  v,  No.  XI,  pp.  659-660.  Also  extracts  in  Register  and  other  papers. 
JOHN  P.  HALE,  Speech  at  Complimentary  Dinner  to,  on  the  Buffalo  Conven 
tion  Platform.    "In  1848,  truisms;  in  1850,  treason."   In  Boston  Common 
wealth,  May  7. 

EXCESS  OF  FREEDOM:  Letter  to  Free  Democracy  Meeting,  September  27. 
HON.  JOHN  P.  HALE,  Address  to,  on  Presentation  of  Medal  at  Tremont Temple, 

October  13. 
MASSACHUSETTS  CONSTITUTIONAL  CONVENTION  (1853)  DEBATES:  — 

SPEECH  ON  RIGHT  OF  HABEAS  CORPUS.  Vol.  iii,  pp.  378-381, 476-478,  480- 

481. 

AGAINST  JURIES  AS  JUDGES  OF  THE  LAW.  Vol.  iii,  451-454,  507-509. 
TOWN  REPRESENTATION  IN  THE  LEGISLATURE.    Vol.  i,  941-949;  vol.  ii, 

134-136,  185,  450-452. 

APPOINTMENT  AND  TENURE  OF  THE  JUDICIARY.   Vol.  ii,  756-770;  vol.  iii, 
180-187,  192,  207-208,  228,  234,  235,  626-627,  630-632.   (The  chief 
address  printed  in  this  collection.) 
LOAN  OF  THE  STATE  CREDIT.  Vol.  ii,  674-677. 
MILITIA.  Vol.  ii,  27,  98-102. 


BIBLIOGRAPHY  507 

OLD  LAWS  CONTINUED.  Vol.  i,  356. 

ELECTIONS  BY  PLURALITY.  Vol.  i,  385-393;  vol.  iii,  143-145,  275-277,  278. 

QUALIFICATIONS  OP  VOTERS.  Vol.  i,  684-688;  vol.  ii,  511-517. 

ELECTION  OP  JUDGE  OF  PROBATE.    Vol.  i,  705-706,  708-711,  719;  vol.  ii, 

470-471,  534,  539-540. 

SHERIFFS  SUBJECT  TO  THE  GOVERNOR.  Vol.  ii,  468-471. 

CONSTITUTION  OF  1853,  Speech  in  Favor  of  the  Adoption  of.  Cambridge,  No 
vember  1. 

FRANCIS  DANA  (2D),  ESQ.,  Reminiscence.  In  Boston  Daily  Advertiser,  De 
cember  29. 

1854 

FUGITIVE  SLAVE  RESCUE  TRIALS:  Anthony  Burns:  Argument.  "Boston  Slave 
Riot  &  Trial  of  Anthony  Burns,"  8vo,  Boston,  Fetridge  Company.  In  Boston 
Daily  Commonwealth,  May  26;  Daily  Evening  Traveller,  May  27,  p.  2,  May 
29,  June  3;  New  York  Evening  Post,  June  3;  New  York  Semi- Weekly  Even 
ing  Post,  June  6;  Boston  Daily  Atlas,  June  22.  (Printed  in  this  collection.) 

REPLY  DECLINING  OFFER  IN  LETTER  OF  WENDELL  PHILLIPS  FOR  FEE  FOR  HIS 
SERVICES  IN  DEFENDING  ANTHONY  BURNS.  In  Boston  Commonwealth,  June  15. 

THE  BIBLE  IN  THE  PUBLIC  SCHOOLS:  Argument.  In  Boston  Traveller,  July  22. 
12mo,  Boston,  Wright  &  Potter,  1855.  12mo,  Boston  Sabbath  School  So 
ciety,  Cornhill,  Boston,  1855,  59  pp.  (Printed  in  this  collection.) 

PROFESSOR  GREENLEAF,  Resolutions  on  Death  of,  at  Meeting  of  Suffolk  Bar. 

1855 

JUDGE  LORING,  Remarks  against  the  Removal  of,  before  the  Committee  on 

Federal  Relations  of  the  Massachusetts  Legislature,  March  5.  8vo,  Boston, 

Alfred  Mudge  &  Son.    Also  in  Boston  Daily  Advertiser,  March  7;  Boston 

Evening  Transcript,  March  7. 
WORCESTER  REPUBLICAN  CONVENTION:  Address  to  the  People  of  Massachusetts, 

and  Resolutions.  In  Worcester  Spy,  September  21. 
SPEECH  OF  R.  H.  DANA  at  Above.  Abstract  in  Boston  Atlas,  September  22.    In 

full  in  Boston  Evening  Telegraph,  September  24. 
REPORT  TO  CITIZENS  OF  CAMBRIDGE  ON  THE  WORCESTER  CONVENTION.    In 

Boston  Atlas,  October  25. 
MANDAMUS  IN  ECCLESIASTICAL  CASES  IN  AMERICA.  In  Monthly  Law  Reporter, 

N.  S.,  vol.  viii,  No.  VIII,  December,  pp.  421-432. 

1856 

PROFESSOR  EDWARD  TYRRELL  CHANNING,  Obituary  on.  In  Boston  Daily 
Advertiser,  February  15;  Cambridge  Chronilce,  March  8. 

EDWARD  T.  CHANNING:  Biographical  Notice  to  Lectures  to  Seniors  in  Harvard 
College.  12mo,  Boston,  Ticknor  &  Fields. 

CHARLES  SUMNER,  On  Outrage  to.  "Sumner  Outrage."  12mo,  John  Ford, 
Cambridge,  pp.  26-33.  Also  in  Boston  Daily  Atlas,  June  10. 

BENJAMIN  F.  D  ALTON,  Defense  of.  "  Complete  Trial  of  Edward  O.  Colbura 
and  Benjamin  F.  Dalton  f  ©^Manslaughter  of  William  Sumner."  8vo,  Boston, 
Burnham,  Federhen  &  Company.  Dana's  Closing  Argument,  pp.  38-54. 

CALL  FOR  FREE  SOIL  CONVENTION. 

JUDGE  WOODBURY  DAVIS,  On  the  Removal  of.  In  Monthly  Law  Reporter,  N.  S., 
vol.  ix,  No.  II,  June,  pp.  61-83. 

1857 

"A  VOICE  FROM  THE  MAIN  DECK,  and  Thirty  Years'  Adventures."  By  S.  Leech. 
Introduction  for  the  16th  Edition.  Boston,  Whittemore,  etc.,  1857,  8vo. 


508  BIBLIOGRAPHY 

REV.  J.  S.  KALLOCH,  Defense  of.  "Full  Report  of  R.  H.  Dana's  Argument  for 
the  Defense  of  Rev.  J.  S.  Kalloch,"  by  Dr.  I.  W.  Ayer,  Reporter  for  the 
Boston  Traveller.  8vo,  Boston,  Federhen  &  Company.  In  Boston  Daily  Bee, 
April  7,  1857.  Extra  Edition,  Boston  Daily  Bee,  April  7,  1857. 

DALTON  DIVORCE  CASE.  "Opening  Address  and  Closing  Argument  of  R.  H. 
Dana,  Jr.,  Esq.,  in  the  Dalton  Divorce  Case."  8vo.  Office  of  Boston  Daily 
Bee.  In  Boston  Daily  Bee,  May  11,  1857. 

SEAMEN,  Address  on  Behalf  of.  In  Boston  Evening  Transcript,  June  13. 

FRANKLIN  DEXTER,  ESQ.,  Remarks  on  the  Death  of,  at  Suffolk  Bar  Meeting. 
In  Boston  Daily  Advertiser,  September  9. 

TOWN  OF  BELMONT,  Argument  before  Massachusetts  Legislative  Committee 
against  Separation  of,  from  West  Cambridge.  12mo,  Boston,  Damrell  & 
Moore,  10  pp. 

1858 

JUDGE  LORING,  Letter  on  Removal  of.  In  New  York  Evening  Post. 
HARVARD  FOOTBALL.    In  Boston  Daily  Advertiser,  September  18;  New  York 
Evening  Post,  September. 

1859 

"To  CUBA  AND  BACK,  a  Vacation  Voyage."  12mo,  Boston,  Ticknor  &  Fields, 

288  pp.   Smith,  Elder  &  Co.,  London,  1859.   French  Edn.  1860.   Houghton, 

Mifflin  &  Co.,  Boston,  1887. 
SANDWICH  ISLANDS,  Missions  in,  etc. ;  Letter  to  New  York  Tribune,  re-published 

by  the  American  Board  of  Commissioners  for  Foreign  Missions.    Quarto 

Leaflet. 
BALLOT  IN  THE  UNITED  STATES:  Letter  to  Lord  Radstock.  In  London  Times, 

August  27. 
RUFUS  CHOATE,  Remarks  before  Suffolk  Bar  Association  on  Death  of.  Works 

of  Rufus  Choate,  by  Samuel  Gilman  Brown,  vol.  i,  p.  252.  Also  in  Daily  Alta 

California,  San  Francisco,  September  9;  and  Boston  papers.   (Printed  hi  this 

collection.) 
SHIP  MASTIFF  BURNED  AT  SEA.    In  Daily  Alta  California,  San  Francisco, 

November  5;  Boston  Weekly  Courier,  November  18. 

1860 

JAPAN,  Letter  on.  In  New  York  Evening  Post,  August7;  Boston  Daily  Ad 
vertiser,  August  11. 

REPUBLICAN  MEETING  AT  CAMBRIDGE:  Speech  as  Presiding  Officer.  In  Boston 
Daily  Advertiser,  November  3. 

1861 

/EASONABLE  CONCILIATION  WITH  THE  SOUTHERN  STATES  :  Speech  at  Manchester, 
N.  H.,  just  prior  to  the  breaking  out  of  the  Civil  War;  February  19.   8vo, 
Boston,  Redding  &  Company.  Also  in  Boston  Daily  Advertiser,  February  20. 
Repeated  at  Cambridge,  Mass.  In  Boston  Daily  Atlas  &  Bee,  February  12. 
FLAG-RAISING  AT  CAMP  CAMERON:  Address.  In  Boston  Daily  Advertiser,  June  29. 
MASON  &  SLIDELL  —  TRENT  AFFAIR:  Letter  on.   In  Boston  Daily  Advertiser, 

November  18. 

PRESIDENT  OF  THE  UNITED  STATES  (Lincoln),  Speech  on,  before  Ancients  & 
Honorables. 

1862 

PICKMAN  & SILSBEE,  Claimants,  U.  S.  vs.,  4261  Prize:  Argument.  Pamphlet,  8vo. 
WASHINGTON'S  BIRTHDAY,  Address  on.  Cambridge  Chronicle,  March  1. 


BIBLIOGRAPHY  509 

FOURTH  OF  JULY  ADDRESS:  Faneuil  Hall  Dinner.  In  Boston  Journal,  July  5.*-x" 
MASSACHUSETTS  REPUBLICAN  CONVENTION  AT  WORCESTER  :  Report  to  Citizens 
of  Cambridge.     (Convention  at  which  Mr.  Dana,  by  his  speech,  prevented 
resolutions  disloyal  to  President  Lincoln.)  In  Boston  Journal,  September  29. 

1863 

PRIZE  CASE;  Amy  Warwick:  Brief  before  U.  S.  Supreme  Court.  Boston,  8vo. 
Also  in  Veeder's  Legal  Masterpieces,  Keefe  Davidson  Company,  St.  Louis, 
1903,  vol.  ii,  pp.  907-928;  2  Black,  U.  S.  Supreme  Court  Reports,  pp.  650-665. 

LIBERAL  CONTRIBUTION  FROM  ABROAD.  In  Boston  Advertiser,  January  7. 

REPUBLICAN  RATIFICATION  MEETING,  Providence,  R.  I.,  Speech  at.  In  Provi 
dence  Journal,  March  31. 

SEAMEN'S  WIDOW  AND  ORPHAN  ASSOCIATION,  Address  before.  In  Salem  Regis 
ter,  April  2. 

REPUBLICAN  RATIFICATION  MEETING  AT  CAMBRIDGE,  Speech  at.  In  Boston 
Daily  Advertiser,  October  6. 

1864 

PRIZE  DECISIONS:  " Enemy's  Territory  and  Alien  Enemies  —  What  the  Supreme 
Court  Decided  in  the  Prize  Causes."  Boston,  8vo,  Little,  Brown  &  Company, 
11  pp.  (Printed  in  this  collection.) 

RUSSIAN  FLEET,  Complimentary  Banquet  to  Rear  Admiral  Lessoffsky  and 
Officers  of,  on  June  7.  Boston,  8vo,  J.  E.  Farwell  &  Company;  Remarks  of 
R.  H.  Dana,  Jr.,  pp.  33-38. 

JOSIAH  QUINCY,  Remarks  before  Historical  Society  on  the  Death  of.  In  Boston 
Evening  Transcript,  August  30.  Also  in  Proceedings  of  the  Massachusetts 
Historical  Society,  vol.  vii,  pp.  398-405. 

CHIEF  JUSTICE  TANEY,  Remarks  on  the  Death  of,  on  October  17.  8vo,  Boston, 
Wright  &  Potter  Company. 

PRESIDENT  LINCOLN,  Meeting  of  New  York  Capitalists  in  Support  of:  Speech  at. 
In  New  York  Times,  November  5. 

JUDGE  SPRAGUE,  A  Tribute  to,  at  the  Dinner  to  Officers  of  the  Kearsarge,  No 
vember  5.  Boston,  8vo,  Alfred  Mudge  &  Son.  Also  in  Boston  Daily  Adver 
tiser,  November  16. 

1865 

EDWARD  EVERETT,  Life  and  Services  of:  Address  on,  February  22.  8vo,  70  pp., 
Cambridge,  Seaver  &  Francis;  also  quarto  edition.  Also  Remarks  on,  in 
Massachusetts  Historical  Society  Proceedings,  vol.  viii,  pp.  152-154;  de 
livered  at  a  special  meeting,  Ja,nuary  20. 

WINTHROP  SQUARE  MEETING,  Speech  at.  April. 

ASSASSINATION  OF  PRESIDENT  LINCOLN,  Speech  on.  In  Boston  Daily  Advertiser, 
April  18;  Boston  Journal,  April  18. 

PERMANENT  AND  HONORABLE  PEACE,  Speech  at  the  Old  South  Meeting  on  Basis 
of.  In  Boston  Transcript,  April  26. 

WESTERN  VISITORS,  Speech  at  Dinner  to.  In  Boston  Daily  Advertiser,  June  10; 
Boston  Journal,  June  10. 

RECONSTRUCTION  OF  SOUTHERN  STATES:  Faneuil  Hall  Address  to  the  People 
of  the  United  States,  prepared  by  R.  H.  Dana,  Jr.,  adopted  June  21.  Boston, 
8vo,  6  pp.  In  Boston  Daily  Advertiser,  July  10;  London  Times;  translated 
into  French  and  printed  in  the  French  papers.  (Biography,  vol.  ii,  p.  334.) 

GRASP  OF  WAR  SPEECH  :  Meeting  in  Faneuil  Hall  on  Reconstruction,  in  Support 
of  the  above  Address,  June  21.  8vo,  4  pp.  In  Boston  Evening  Courier,  June 
22;  Boston  Daily  Advertiser,  June  22;  Boston  Journal,  June  22;  Boston 
Evening  Transcript,  June  22;  Commonwealth,  June  24.  Also  reprinted  in 


510  BIBLIOGRAPHY 

various  other  papers  in  America,  England  and  France.  (Printed  in  this  col 
lection.) 

HARVARD  COLLEGE,  Board  of  Overseers,  Resolutions  presented  at.  In  Boston 
Daily  Advertiser,  September  22. 

UNITED  STATES  NAVY,  Speech  before  Officers  and  Sailors  of. 

1866 

NOTES  TO  WHEATON'S  INTERNATIONAL  LAW.  4to,  Little  &  Brown,  1  vol.  [New 
matter,  in  condensed  style,  about  equal  in  length  to  the  original  work.] 

LOWELL  INSTITUTE;  Lectures  on  International  Law:  12  Lectures.  Reported  in 
Boston  Post,  1866-67. 

SEVENTEENTH  OF  JUNE  CELEBRATION  AT  ARLINGTON,  Speech  at. 

1867 

USURY  LAWS,  Speech  on  the  Repeal  of,  in  the  House  of  Representatives  of 
Massachusetts,  February  14.  8vo,  Boston,  Wright  &  Potter,  30  pp.  8vo, 
New  York,  Cowan,  McClune  &  Company,  23  pp.  (Printed  in  this  collection.) 

EQUALIZATION  OF  BOUNTIES,  Speech  against  Bill  for,  in  Massachusetts  Legis 
lature.  In  Boston  Daily  Advertiser,  May  1. 

GOVERNOR  JOHN  A.  ANDREW,  Speech  on  the  Death  of.  In  Boston  Daily  Adver 
tiser,  November  5. 

LIQUOR  QUESTION,  About  the  Attitude  of  Parties  on:  Speech  at  Republican 
Caucus  of  Legislators,  December  21. 

1868 

EMANCIPATION,  Speech  on,  at  Tremont  Temple.  In  Boston  Journal,  January  2. 
INTOXICATING  LIQUORS,  Act  to  Regulate  Sale  of:  Report  of  Committee  of  the 

Judiciary  of  Massachusetts  Legislature.   House  Document  No.  299,  May  7, 

8vo,  8  pp. 

DECORATION  DAY  ADDRESS  AT  CAMBRIDGE.  In  Cambridge  Press,  June  6. 
LEGISLATURE  OF  1868.  In  Boston  Daily  Advertiser,  June  22. 
W.  T.  G.  MORTON,  Discoverer  of  Ether,  Tribute  to.  In  Boston  Daily  Advertiser, 

August  11. 
REPUBLICAN  STATE  CONVENTION  AT  WORCESTER,  Speech  at,  and  Resolutions. 

In  Boston  Daily  Advertiser,  September  10. 

REPUBLICAN  DEMONSTRATION  IN  BOSTON,  Speech  at.  In  Boston  Daily  Adver 
tiser,  September  15. 
RALLY  AT  GLOUCESTER  IN  CAMPAIGN  AGAINST  GEN.  BUTLER,  Speech  at.   In 

Gloucester  Telegraph,  October  17. 
ACCEPTANCE  OF  NOMINATION  TO  CONGRESS,  5th  District,  against  Gen.  Butler 

on  a  Sound  Money  Platform,  Speech  on.    In  Salem  Gazette  Supplement, 

October  23. 
MIDDLETON,  MASSACHUSETTS:  Meeting  in  Campaign  against  Gen.  Butler  for 

Congress,  and  his  Repudiation  of  the  Platform:  Speech  of  October  26.   8vo, 

11  pp.,  double  column.  Also  in  Salem  Gazette  Supplement,  October  30. 
GOLDEN  ROCKET:  Argument  of  R.  H.  Dana,  Jr.,  before  the  Supreme  Court  of 
,'    Maine.  Law  P.  vol.  ii. 

1871 

UNITY  OF  ITALY.  Meeting  at  Academy  of  Music,  New  York.  Pamphlet,  8vo, 
7  pp.,  January  7. 

BOSTON,  HARTFORD  &  ERIE  RAILROAD  BONDHOLDERS,  Argument  of,  before  Com 
mittee  of  Massachusetts  Legislature  on  Railroads.  April  14.  Boston,  8vo, 
Wright  &  Potter,  1876. 

How  WE  MET  JOHN  BROWN.  Atlantic  Monthly,  July,  pp.  1-9.  Also  in  Life  by 
C.  F.  Adams,  vol.  i,  pp.  145-164. 


BIBLIOGRAPHY  511 

HISTORY  OF  ADMIRALTY  JURISDICTION  IN  THE  UNITED  STATES.  In  American 
Law  Review,  vol.  v,  July,  pp.  581-621. 

1872 

MORSE,  SAMUEL  F.  B.,  Speech  at  Faneuil  Hall  Meeting  on  Death  of.  In  Boston 

Daily  Advertiser,  April  17;  Boston  Daily  Evening  Transcript,  April  17. 
COLORED  CITIZENS  OF  BOSTON,  Letter  to,  on  President  Grant.  In  Boston  Daily 

Advertiser,  August  20;  New  York  Evening  Post,  August  21. 
FUGITIVE  SLAVE  CASES  AND  R.  H.  DANA,  JR.,  by  Lewis  Hayden.    In  Boston 

Daily  Advertiser,  September  10. 
OLD  SOUTH  ARGUMENT.  8vo,  double  column,  7  pp.  In  Boston  Daily  Advertiser, 

December  2. 

1873 

REPORT  OF  THE  VISITING  COMMITTEE  OF  OVERSEERS  OF  HARVARD  COLLEGE, 
for  the  year  1872-73.  8vo,  35  pp.,  John  Wilson  &  Son,  Cambridge. 

1874 

RIGHT  TO  THE  PROTECTION  OF  THE  FLAG:  Case  of  the  Virginius:  Letter  on.  In 
Boston  Daily  Advertiser,  January  6. 

CHARLES  SUMNER,  Remarks  on  the  Death  of,  and  Resolutions,  at  Faneuil  Hall 
Meeting.  In  Boston  Daily  Advertiser,  March  16. 

JUDGE  E.  R.  HOAR:  Address  to  Republican  Members  of  the  Massachusetts 
Legislature  on  behalf  of  the  Election  of  Judge  Hoar  to  the  United  States  Sen 
ate.  Published  by  Committee  in  favor  of  Judge  Hoar's  election,  March  30. 

REPORT  OF  VISITING  COMMITTEE  OF  OVERSEERS  OF  HARVARD  COLLEGE,  for 
the  Year  1873-74.  8vo,  John  Wilson  &  Son,  Cambridge. 

JUDGE  BENJAMIN  R.  CURTIS,  Remarks  on  the  Death  of.  (Died  September  15, 
1874.) 

*'  SUBSOILING,"  or  The  Voters  as  against  the  Prepared  Candidates.  In  New  York 
Nation,  October  22. 

1875 

MR.  SUMNER'S  SUCCESSOR  TO  THE  UNITED  STATES  SENATE.  In  Boston  Daily 

Advertiser,  January  13. 

RHETORICAL  TRAINING.  In  New  York  Nation,  March  11. 
INTERNATIONAL  LAW,  Proposed  Changes  in.  In  New  York  Nation,  March  11. 
CENTENNIAL  ORATION  at  Lexington,  Massachusetts,  April  19.  8vo  and  quarto, 

Franklin  Press,  19  pp.   In  Boston  Daily  Advertiser,  April  20. 
LEXINGTON  AND  CONCORD:  Collection  of  Data.    Boston  Public  Library,  No. 

2350-19. 
REPORT  OF  VISITING  COMMITTEE  OF  OVERSEERS  OF  HARVARD  COLLEGE,  for  the 

Year  1874-75.   8vo,  12  pp.,  John  Wilson  &  Son,  Cambridge. 
ADMIRALTY  LIENS  AND  MATERIAL-MEN:  The  Latawana.    In  American  Law 

Review,  July,  pp.  638-667.   Pamphlet,  8vo,  30  pp. 
DR.  G.  B.  LORING'S  CANDIDACY  FOR  GOVERNOR.    In  Boston  Daily  Advertiser, 

September. 
REPUBLICAN  RATIFICATION  MEETING,  Faneuil  Hall,  Address  at,  as  President. 

In  Boston  Daily  Advertiser,  October  8. 
BOSTON  BACK  BAY  RIVER  PARK,  Remarks  on.    In  Boston  Daily  Advertiser, 

November  5. 

1876 
STEPHEN  DECATUR,  Tribute  to.  In  Boston  Daily  Advertiser,  January  13. 


512  BIBLIOGRAPHY 

PUBLIC  PARKS,  Meeting  in  Favor  of,  Address  at.   In  Boston  Daily  Advertiser, 

June  8. 

REPUBLICAN  MEETING  AT  CAMBRIDGE.  In  Boston  Daily  Advertiser,  November  3. 
REPUBLICAN  MEETING  AT  BOSTON.  November. 

1877 

POINTS  IN  AMERICAN  POLITICS:  Modes  of  Presidential  Election  —  Ascertaining 
the  Presidential  Vote  —  Tenure  of  Office  and  Re-eligibility  of  the  President  — 
Civil  Service  Reform  —  Seats  of  Cabinet  Ministers  in  the  Two  Houses  —  Re 
sumption  of  Specie  Payments  —  Withdrawal  of  Federal  Troops  from  South 
ern  States.  In  North  American  Review,  January,  1877,  pp.  1-30. 

HALIFAX  FISHERIES  COMMISSION:  Argument  of  R.  H.  Dana,  Jr.,  on  behalf  of  the 
United  States.  Public  Documents,  Halifax  Commission  1877,  U.  S.  Govt. 
Printing  Office  1878,  vol.  iii,  pp.  1652-1705.  Also  separate  pamphlet,  8vo, 
82  pp.  (Printed  in  this  collection.) 

FRANCIS  DANA:  Biographical  Sketch.  Pamphlet,  Philadelphia;  also  in  Pennsyl 
vania  Magazine  of  History  and  Biography,  No.  1,  vol.  i. 

1878 

LORD  KINNAIRD,  Tribute  to.  In  Boston  Daily  Advertiser,  February  13. 
CHIEF  JUSTICE  BIGELOW,  Tribute  to.  In  Boston  Daily  Advertiser,  April  19. 

1880 

NULLITY  OF  THE  EMANCIPATION  EDICT:  The  Peculiar  Form  and  Manner  of 

What  had  a  great  Moral  and  Practical  Effect.  In  the  North  American  Review, 

August,  pp.  128-134. 
SKETCH  OF  AMERICAN  DIPLOMACY.  In  Scribner's  Monthly  Magazine,  August, 

pp. 616-621. 

LEONARD  WOODS.  In  Scribner's  Monthly  Magazine,  November,  pp.  138-144. 
EMANCIPATION  PROCLAMATION  :  Answer  to  Criticisms.  In  Springfield  Republican, 

December,  1880,  or  January,  1881. 

1882 

JUDGE  SAMUEL  SUMNER  WILD,  Memoir  of,  by  Gardner  White.  Letter  of  R.  H. 
Dana,  Jr.,  in  pp.  14-21.  8vo,  John  Wilson  &  Son,  Cambridge. 

1890 

BIOGRAPHY  OF  RICHARD  H.  DANA,  JR.,  by  Charles  Francis  Adams.  Houghton, 

Mifflin  &  Company,  Boston,  1890,  two  volumes,  8vo,  814  pp. 
REVISED  EDITION,  ditto,  1891,  two  volumes,  8vo,  799  pp. 

1891 

A  VOYAGE  ON  THE  GRAND  CANAL  OF  CHINA.  In  the  Atlantic  Monthly,  vol.  Ixvii, 

No.  403,  May,  pp.  600-609. 
RICHARD  HENRY  DANA.   By  Mr.  Hamilton  Andrews  Hill;  containing  extracts 

from  Mr.  Dana's  writings  and  conversation.  Andover  Review,  May,  pp.  482- 

496. 


INDEX 


Adams,  Charles  Francis,  Sr.,  early  friend,  12 ; 
Pres.  Buffalo  Free  Soil  Conv.  1848,  152;  vice- 
presidential  candidate  and  enthusiasm  for, 
159-161. 

Adams,  Charles  Francis,  Jr.,  author  of  biography 
of  R.  H.  D.,  Jr.  (See  Biography.) 

Adams,  John,  with  reference  to  the  Mass,  con 
stitution  of  1780,  92;  contrasted  with  Rufus 
Choate,  290. 

Adams,  John  Quincy,  in  connection  with  Mon 
roe  Doctrine,  297-325;  the  "Father  of  the 
Monroe  Doctrine,"  298,  344  (note). 

Admiralty  Jurisdiction,  history  of,  in  the  U.  S., 
6,  511. 

Advent,  parish  of,  in  Boston,  504,  505,  506. 

Agassiz,  Prof.  Louis,  early  friend,  10;  did  not 
accept  Darwinism,  24. 

Alabama  Claims,  high  award  for,  at  Geneva 
basis  of  large  award  against  the  U.  S.  in  the 
Halifax  Fisheries  case,  351. 

Allston,  Washington,  uncle  by  marriage,  8; 
charm  and  European  friends  of,  9;  one  evening 
a  week  with,  14;  Dana's  Introduction  to  Let 
ters  and  Poems  of,  25,  505,  506;  denies  truth  of 
anecdotes  about,  503;  on  Allston's  Belshaz- 
zar's  Feast,  504. 

American  Loyalty,  lecture  on,  25,  504. 

Amy  Warwick.     (See  Prize  Causes.) 

Andrew,  Gov.  John  A.,  speech  on  death  of,  1867, 
510. 

Appointment  vs.  Election  of  Judges  of  Probate, 
speech  on,  at  Mass.  Constl.  Conv.  1853,  507. 

Architecture,  Gothic,  letter  on,  504;  general, 
letter  on,  504. 

Arlington,  speech  at,  on  June  17,  1866,  510. 

Ballot  in  the  U.  S.,  letter  to  Lord  Radstock  on, 
508. 

Bancroft,  George,  early  friend,  10. 

Banks,  Gen.  N.  P.,  in  Mass.  Constl.  Conv. 
1853,  78. 

Bartlett,  Sidney,  in  Mass.  Constl.  Conv.  1853, 78. 

Beamis,  George,  in  law  school  with,  13. 

Belligerency,  England's  recognition  of,  in  Civil 
War  turned  by  Mr.  Dana  in  Prize  Causes  into 
acquiescence  in  right  of  the  U.  S.  to  blockade, 
42,  237-239,  273,  274;  powers  of,  244-246. 

Belmont,  argument  against  separation  of  Town 
of,  508. 

Berkeley,  Bishop  George,  admires  philosophy  of 
and  names  street  for,  22. 

Bible  in  the  Public  Schools,  The,  1;  argument 
on,  69-77,  507. 

Bibliography,  503-512. 

Biography  of  R.  H.  Dana,  Jr.,  by  Charles  Francis 
Adams  (Jr.),  1890,  a  striking  one,  1-2;  omis 
sion  as  to  general  reading  and  study  in 


evenings,  14-16;  as  to  Thackeray,  16-17;  as  to 
philosophy,  19-24;  corrections  of  statements 
in,  as  to  Milton,  27;  as  to  Tennyson,  27-28; 
as  to  Darwin,  28;  Mr.  Dana  not  inconsistent, 
as  stated  in  biography,  but  always  claimed  the 
Civil  War  was  a  great  war  with  a  great,  de  facto 
power,  during  the  War  as  well  as  after  it  was 
over,  235-240.  (See  also  273-275.) 

Elaine,  Secretary  James  G.,  Monroe  Doctrine 
sets  precedent  for  Roosevelt's  San  Domingo 
plan,  341. 

Boston  Back  Bay  River  Park  (1875),  46-47, 
511;  (1876),  512. 

Boston,  Hartford  &  Erie  R.  R.  Bondholders, 
Argument  for,  1871,  510. 

Bounties,  speech  against  equalization  of,  1867, 
510. 

Brent,  William,  witness  against  Anthony  Burns, 
215-217,  222-223,  226-232. 

Brown,  John,  views  on,  41-42;  how  we  met,  510. 

Buffalo  Free  Soil  Conv.  1848,  account  of,  149- 
163,  504. 

Butler,  Gen.  B.  F.,  of  Mass.,  runs  against  as 
independent  on  honest  money  issue,  61;  in 
Mass.  Constl.  Conv.  1853,  78,  87;  Dana's 
"kid  gloves,"  445;  campaign  against,  speeches 
in  Gloucester  and  Middletown,  and  acceptance 
of  nomination,  510. 

Butler,  B.  F.,  of  N.  Y.,  with  Chase  of  Ohio, 
joint  author  of  Free  Soil  platform,  Buffalo, 
1848,  153. 

Burden  of  proof.     (See  York  case.) 

Burke,  Edmund,  reads,  15,  436. 

Burlingame,  Anson,  in  Mass.  Constl.  Conv., 
78,  97. 

Burns,  Anthony,  defense  of,  32;  argument  in 
same,  210-233,  507;  introduction  and  general 
remarks,  210-213;  Marshall's  guard,  210-211; 
identity,  213-217;  identity  as  affected  by 
time,  seen  in  Virginia  and  Boston,  217-222; 
does  not  owe  service  to  Suttle,  claimant,  be 
cause  leased  by  him  to  Mr.  Millspaugh,  222, 
226-230;  was  there  an  escape?  226-230;  sec 
tions  6  and  10  of  the  fugitive  slave  law  as 
applied  to  the  case,  223-226;  alleged  admis 
sions  of  Burns  if  made  were  made  under 
pressure  and  threats,  230-232  ;  presumption 
of  freedom,  212-213,  232-233  ;  refusal  of  fee 
in  Burns  case,  210-211,  507. 

Byrnes,  witness  and  deputy  marshal  in  Davis 
rescue  case,  203,  205. 

Cabinet  Ministers  in  U.  S.,  seats  in  both  Houses 

of  Congress,  512. 

Cambridge  School,  high  standard  of,  11. 
Camero.i,  Camp,  speech  on  flag-raising  at,  1861, 


514 


INDEX 


Canning,  George,  description  of,  in  English 
Parliament,  by  "Uncle  Edmund,"  64-65. 

"Carpet  Bag"  rule,  Mr.  Dana  opposed  to,  235. 

Cass,  Lewis,  referred  to  in  Free  Soil  address, 
146-148  ;  in  account  of  Buffalo  Conv.  1848, 
151,  162  ;  cheers  for,  at  Great  Gravitation 
Meeting,  a  Parody,  175. 

Centennial  Oration  at  Lexington,  1875,  511. 

Channing,  Prof.  Edward  Tyrrell,  early  friend, 
10;  assistant  to  at  Harvard,  14;  account  of,  25; 
article  on,  507;  biographical  notice  of,  507. 

Channing,  William  Ellery,  early  friend,  10. 

Charles  River  Park,  development  of,  in  1875, 
46-47,  511;  in  1876,  512. 

Chase,  Salmon  P.,  with  Butler  of  N.  Y.  chief  au 
thor  of  Free  Soil  platform,  Buffalo,  1848,  153. 

Child,  Prof.  F.  J.,  early  friend,  10;  on  civil  service 
reform,  51;  entertaining  on  ocean  voyage,  475. 

China,  Voyage  on  Grand  Canal  of,  512. 

Choate,  Rufus,  address  on,  1;  early  friend,  10; 
literary  anecdote  of,  18;  wealth  of  illustration, 
28;  in  Mass.  Constl.  Conv.  1853,  78;  abandons 
Free  Soil  platform,  147;  a  character  in  Great 
Gravitation  Meeting  parody,  167,  171-174; 
address  on  death  of,  188-294,  508;  "The  age 
of  miracles  is  past,"  288;  the  homeward  bound 
Indiaman,  289;  basis  of  his  oratory,  290-291; 
aesthetic  nature,  291;  poetic  temperament, 
292;  love  of  philosophy,  293. 

Civil  service  reform,  description  of  "spoils" 
system,  and  remedy  by,  44—46, 48;  advocates, 
"  goes  deeper  into  the  political  life  of  the  nation 
than  any  other  .  .  .  policy,"  49-53;  its  advo 
cacy  a  hindrance  to  political  advancement, 
50-53;  a  vision,  61;  judges  in  the  political  mill, 
when  elected,  95;  bad  appointment  of  Halifax 
Fishery  Commission  a  bit  of  party  "spoils," 
350;  lack  of  permanent  under  secretaries  in 
state  and  other  departments  of  the  U.  S.,  352- 
353;  "  subsoiling,"  511;  in  Points  in  American 
Politics,  1877,  512. 

Civil  War  recognized  by  Mr.  Dana  consistently 
as  a  great  war,  5,  43,  235-241. 

Clay,  Henry,  Clay  Whigs  at  Buffalo  Free  Soil 
Conv.,  150. 

Clergyman  defended  on  charges  of  adultery,  31. 

Cleveland,  Pres.  Grover,  Venezuelan  boundary 
question,  330-337. 

Clifford,  ex-Gov.,  chosen  as  TJ.  S.  member  of  Hal 
ifax  Commission,  349. 

Clifford,  Judge  Nathan,  rebuked  for  inferior 
appointment,  48-49. 

Coleridge,  Samuel  Taylor,  made  real  to  young 
Dana,  from  his  friend  Allston,  8-9;  reads,  16; 
limitations  of  human  reason,  21. 

Collision  at  sea.     (See  Osprey.) 

Colored  citizens  of  Boston,  letter  to,  on  President 
Grant,  1872,  511. 

Commonwealth  (newspaper),  libel  suit  against, 
defended  by  R.  H.  Dana,  Jr.,  506. 

Conciliation,  reasonable,  with  southern  states 
'61,  508. 

Constitution  proposed,  1853,  speech  favoring, 
507. 

Constitutional     Convention     for    Mass.,    1853 


Dana  goes  into  metaphysics  of  constitutional 
government,  5-6;  gains  reputation  in,  53; 
speech  on  judiciary,  78-116;  on  other  subjects, 
506. 

Cooke,  Prof.  J.  P.,  early  friend,  10;  changes  in 
theory  of  chemistry,  20. 

Cuba  and  Back,  To,  1859,  a  vacation  voyage,  by 
R.  H.  Dana,  Jr.,  508. 

Curtis,  Judge  Benjamin  R.,  remarks  on  death 
of,  1874,  511. 

Curtis,  George  T.,  fairness  as  U.  S.  Commis 
sioner,  204;  as  witness  in  rescue  case,  197. 

Curtis,  George  William,  Dana  as  civil  service 
reformer  before,  46. 

Dalton,  Benjamin  F.,  defense  of,  on  charge  of 
murder,  507. 

Dalton  vs.  Dalton,  divorce  case,  argument  in, 
29-30,  508. 

Dana,  Miss  R.  Charlotte,  sister  of  R.  H.  D.,  Jr.,  9. 

Dana,  Edmund  Trowbridge,  Sr.,  uncle,  literary 
influence,  artistic  friends  and  cultivation  of, 
8-9;  how  Johnson  revised  Boswell's  notes,  19; 
journal  entries  of  conversations  with  stories  of 
characters  in  English  Parliament  and  of  mirth 
of  Genl.  Washington,  64-68. 

Dana,  Edmund  Trowbridge,  2d,  brother,  high 
education  and  brilliancy  of,  9;  reader  of  phi 
losophy,  20. 

Dana,  Francis,  Sr.,  grandfather,  anecdote  of 
Washington  at  Valley  Forge,  66;  member  of 
Continental  Congress,  signer  of  Articles  of 
Confederation,  appointed  minister  to  Russia, 
Chief  Justice  of  Massachusetts,  440;  biograph 
ical  sketch  of,  512. 

Dana,  Francis,  Jr.,  uncle,  9;  reminiscence  of,  507. 

Dana,  Richard  Henry,  Sr.,  father,  essayist,  poet, 
founder  of  North  American  Review,  early 
lecturer  on  Shakespeare,  7;  encourages  hard 
work  at  school,  10;  encourages  manliness,  12; 
reader  of  philosophy,  20. 

Dana,  Richard  Henry,  Jr.,  views  on  American 
aristocracy,  48-61;  college  rank,  12;  Bowdoin 
prizes,  12;  bookkeeping,  26;  hard  work,  26, 
56-57;  law  school,  13-14;  Milton,  fondness 
for,  26-27;  attitude  as  lawyer,  31-36;  common 
sense  views,  41-46;  philosophy,  19-24;  reason 
ing  on  fundamental  principles,  3-6,  37-43; 
general  reading,  11,  12,  14-20,  23,  24,  26-28; 
religious  views,  21-23;  views  on  Thackeray, 
16-17;  style,  14,  37;  fondness  for  Tennyson, 
27-28;  free  soiler,  not  abolitionist,  41,  59-60; 
powers  of  debate,  47-48;  nominations  for 
Congress,  53,  61;  offered  position  of  minister 
to  Russia,  54;  offered  judgeship  in  Mass. 
Supreme  Judicial  Court,  54;  attorney  for  U.  S. 
in  the  prosecution  of  Jefferson  Davis,  54; 
counsel  for  U.  S.  Halifax  Fishery  Commission, 
54,  344-425;  ambassadorship  to  England 
offered  by  Grant,  55;  professional  career,  31- 
36,  55-56;  success,  48-49;  repartee,  and  as  a 
raconteur,  58;  called  a  man  of  genius,  59-62; 
as  a  churchman,  61-62;  member  of  the  Mass, 
legislature,  5,  44,  47,  53,  117-144;  writes  a 
parody  on  the  fugitive  slave  law  as  necessary 


INDEX 


515 


for  the  preservation  of  the  constitution,  Great 
Gravitation  Meeting,  164r-177;  differs  from 
Sumner  on  reconstruction,  235;  Prize  Causes, 
1,  4-5,  41,  235-241,  273-287;  turns  the  Eng 
lish  acknowledgment  of  belligerency  in  the 
Civil  War  into  recognition  of  powers  of  block 
ade,  42,  237-239,  273-274;  secret  history  of 
the  Halifax  award,  345-354;  biography  of,  by 
Charles  Francis  Adams  (see  Biography);  short 
memorial  of,  by  Hamilton  A.  Hill,  1891,  512. 
(See  also  index  generally.) 

Dante  Society,  an  early  member  of,  24. 

Darwin,  attitude  towards,  24-28. 

Davis,  Charles  G-,  defense  of,  on  charge  of  aiding 
escape  of  fugitive  slave  Shadrach,  178-209,  505. 

Davis,  Jefferson,  counsel  for  U.  S.  against, 
1865,  54. 

Davis,  William,  in  law  school  with,  13. 

Davis,  Judge  Woodbury,  article  on  removal  of 
for  free  soil  views,  507. 

Dawes,  Henry  L.,  in  Mass.  Constl.  Conv.  of 
1853,  78;  responsible  for  bad  appointment  of 
U.  S.  Commissioner,  Halifax  Fishery  Com 
mission,  350. 

Decatur,  Stephen,  tribute  to,  1876,  511. 

Decoration  Day  address  at  Cambridge,  1868, 510. 

Delfosse,  M.  Maurice,  arbitrator  on  Halifax 
Fishery  Commission,  345-354. 

Democracy,  free  D.  meeting,  letter  to,  on  "Ex 
cess  of  Freedom,"  506. 

Democrats  and  democratic  party  in  connection 
with  Buffalo  Free  Soil  Convention,  1848,  151, 
163. 

Dexter,  Franklin,  remarks  on  death  of,  508. 

Dickens,  Charles,  remarks  at  dinner  to,  503. 

Diplomacy,  sketch  of  American,  1880,  512. 

Drago  Doctrine  on  collecting  claims  against 
nations  by  war  —  Monroe  Doctrine,  341-342. 

Eastburn,  Bishop,  and  his  Clergy,  504. 
Election  or  appointment  of  judges  of  probate, 

speech  on,  in  Mass.  Constitutional   Conven 
tion  1853,  507. 
Elections   by   plurality,   speech   on,   in   Mass. 

Constl.  Conv.  1853,  507. 
Electoral  reform  for  choosing  president  of  U.  S., 

44,  512. 
Eliot,  Samuel  A.,  votes  in  Congress  for  fugitive 

slave  law,  1850,  187. 
Emancipation,  preferred  gradual,  and  views  on 

John  Brown,  41-42.  (See  also  Negro  Suffrage.) 
Emancipation  Proclamation,  247-248;  nullity  in 

form  of,  though  effective  as  a  policy,  512 

answer  to  criticism  on  latter,  512. 
Emerson,  Ralph  Waldo,  teacher,  10,  12;  goes  to 

hear,  20. 
Enemy's   territory,   the   meaning  of   the   prize 

decision,  4-5,  277-287,  508.     See  also  Prize 

Causes. 

English  Contrasts,  lecture  on,  25. 
Essex  Railroad  case,  505. 
Ether,  discoverer  of,  504;    tribute  to  Morton 

the  discoverer  of,  510. 
Evarts,  William   M.,   early  friend,  10;   in  la 


school  with,  13;  sets  a  precedent  for  the  sub 
sequent  San  Domingo  plan  of  Pres.  Roosevelt, 
340;  illuminating  note  on  Halifax  Fishery 
award,  345. 

Sverett,  Edward,  early  friend,  10;  speech  at 
60th  anniversary  in  Lexington,  11;  Dana's 
address  on,  28,  509. 

Excess  of  Freedom,  letter  on,  to  free  democracy 
meeting,  506. 

Fee,  refusal  of,  in  fugitive  slave  cases,  210,  507, 
511. 

Federal  troops  in  the  South,  advocated  with 
drawal  of,  1876,  45,  512. 

Fields,  Mr.  and  Mrs.  James  T.,  early  friends,  10. 

Fillmore,  Millard,  Pres.,  U.  S.,  sigus  fugitive 
slave  law,  1850,  164;  policy  on  fugitive  slave 
rescue  cases,  183-185. 

Fire  at  sea,  burning  of  the  Mastiff,  508. 

First  impressions  of  a  sailor,  505. 

Fishery  Commission,  Halifax,  counsel  for  the  U. 
S.,  54,  345-426.  (See  also  Halifax  Fishery 
Commission  and  Hague  Tribunal.) 

Flag,  protection  of  the,  Virginius  case,  1874,  511. 

Football  at  Harvard,  1858,  508. 

Foster,  Judge  Dwight,  references  to,  in  Halifax 
Fishery  argument,  354-356,  373,  395,  411. 

Fourth  of  July  address,  Faneuil  Hall,  1862,  509. 

Fox,  Charles  James,  in  Parliament,  described  by 
"Uncle  Edmund,"  64. 

Free  soil,  meeting  at  Buffalo,  1848,  account  of, 
149-163,  504;  at  Boston,  1848,  remarks  as 
president  of,  145-148;  at  Faneuil  Hall,  1848, 
504;  at  Faneuil  Hall,  1850,  speech  at,  505;  at 
Worcester,  speech  at,  505;  platform  aban 
doned  by  Whigs,  145-148,  505;  meeting  in 
1850,  505;  social  and  political  influence 
against  counsel  for  fugitive  slaves  or  rescuers, 
183-185,  190-192,  195-196,  201-202,  205-208, 
210-211;  call  for  convention,  1855,  507;  on 
the  removal  of  Judge  Woodbury  Davis  for 
free  soil  views,  507. 

Freedom,  excess  of,  letter  to  free  democracy 
meeting,  506. 

Fugitive  slave  cases,  attitude  as  lawyer  in  An 
thony  Burns  case,  32-33;  freedom  as  against 
money,  42,  212-213;  social  and  political  in 
fluence  against  counsel  for  fugitive  slaves  and 
rescuers, 183-185,  190-192,  195-196,  201-202, 
205-208,  210-211;  Sims  case,  505;  refusal  of 
fee  in,  210, 507,  511;  mistaken  identity,  Gibson 
case,  166,  214;  Freeman  case,  214;  Lewis 
Hayden,  511.  (See  also  Burns,  Anthony; 
Davis,  Charles  G  ;  Hayden;  Morris;  Shad 
rach.) 

Fugitive  Slave  law  of  1850,  immoral  and  unjust, 
32;  opposed  its  unjust  and  drastic  provisions, 
41-42,  60;  support  of,  the  test  in  federal  pa 
tronage,  50;  parody  on,  as  essential  to  the 
preservation  of  the  Constitution,  164-177; 
trial  by  jury  not  allowed  in,  167,  170-171,  174, 
187-190;  analysis  of,  in  Burns  case,  223-226; 
resolutions  on,  505.  (See  also  Fugitive  Slave 


516 


INDEX 


Gait,  Sir  Alexander,  British  Commissioner 
Halifax  Fishery  Commission,  349-354. 

Geneva  Arbitration.     (See  Alabama  Claims.) 

Geneva,  N.  Y.,  address  before  literary  societies 
of,  506. 

Gestures,  few  and  not  artificial,  7,  462-463;  in 
rhetorical  training,  511. 

Gibson,  Adams,  mistaken  foriugitive  slave,  166, 
214. 

Golden  Rocket  argument  before  U.  S.  Supreme 
Court,  1871,  510. 

Gothic  architecture,  504. 

Gould,  Prof.  B.  A.,  early  friend,  10. 

Grand  Canal  of  China,  Voyage  on,  1859,  512. 

Grasp  of  War,  speech  and  resolutions  on  recon 
struction,  1865,  5,  43,  234-272,  509;  powers  of 
reconstruction,  243-247,  252-254,  258-259, 
261-264,  what  ought  to  be  done?  247-248, 
264-265,  268-269;  how  ought  it  to  be  done? 
248,  252,  254-258,  263-264,  265-272;  laws 
against  negroes  in  southern  states,  248-250, 
260-262,  267;  negro  franchise  on  educational 
and  property  qualifications,  250-252,  271;  not 
social  equality  demanded  for  negro,  j  270- 
271. 

Great  Britain's  acknowledgment  of  belligerency 
in  Civil  War  a  help  to  blockade  and  pme,  42, 
237-239,  273-274;  connection  with  in  origin 
of  the  Monroe  Doctrine,  296-300;  connection 
with  French  intervention  in  Mexico,  329-330; 
Venezuelan  boundary  question,  330-337. 

Great  Gravitation  Meeting,  parody  on  fugitive 
slave  law  to  preserve  the  constitution,  164- 
177,  505. 

Greenleaf,  Prof.  Simon,  professor  in  Harvard 
Law  School,  13;  true  attitude  of  the  lawyer, 
36;  resolutions  on  death  of,  507. 

Greenoughs,  early  friends,  10. 

Grier,  Judge  Robert  C.,  Dana  cleared  up  doubts 
of,  in  Prize  Causes,  4;  writes  opinion  of  U.  S. 
Supreme  Court  in  Prize  Causes,  239-241; 
praises  Dana's  argument  in  Prize  Causes,  275; 
meaning  of  Prize  Cause  decision,  Enemy's 
Territory,  277-287. 

Habeas  corpus,  on  right  of,  speech  in  Mass. 
Constl.  Conv.  1853,  506. 

Hague  Peace  Conference,  1907,  on  the  Monroe 
Doctrine,  341-342. 

Hague  Tribunal  decides  war  enforced  claims  as 
preferred,  —  its  effect  on  the  Monroe  Doc 
trine,  1903,  338-339;  on  meaning  of  fisheries 
treaty  of  1818  in  1910,  353-354. 

Hale,  John  P.,  candidate  at  Buffalo  Free  Soil 
Convention,  1848,  152,  154,  156-159;  speech 
at  dinner  to,  506;  speech  on  presentation  of 
medal  to.  506. 

Halifax  Fishery  Commission,  secret  history  of, 
345-354;  argument  of  R.  H.  Dana,  Jr.,  before, 
354-355,  513;  the  fisheries  won  from  the 
French  by  aid  of  N.  E.  colonists,  254-256; 
right  of  fishing  generally,  356,  359;  right  of 
U.  S.  "acknowledged"  after  Revolutionary 
War,  360-361;  war  of  1812  and  treaty  of  1818, 
361-362;  mackerel  fishery  first  important  in 


1827,  363;  exclusion  from  3-mile  limit  expen 
sive  to  Great  Britain,  363-365,  368;  headland 
question,  365-366;  difficulty  in  construing 
laws  regarding  limitations,  366-368;  exclusion 
of  Canadian  fish  from  U.  S.  markets,  368; 
difficulty  of  measuring  3-mile  limit  from  shore 
when  at  sea,  369-370;  3-mile  limit  a  modern 
doctrine,  370-372;  reciprocity  treaty  of  1854, 
372-374;  Treaty  of  Washington,  1871,  374- 
378;  a  measure  of  peace  more  than  money, 
with  U.  S.,  378-379;  money  value  of  the  3- 
mile  restriction,  379-400,  402-410,  423;  value 
to  Canada  of  free  sale  of  fish  in  the  U.  S.,  400- 
402,  410-418,  419-422;  general  conclusions, 
418-426. 

Hallett,  Benjamin  F.,  a  character  in  Great  Grav 
itation  Meeting,  a  parody  on  the  fugitive  slave 
law,  167,  176-177;  commissioner  in  Davis 
rescue  case,  178-209. 

Harvard,  football  at,  1858,  508;  resolutions 
presented  to  Board  of  Overseers  of,  510;  re 
port  of  Visiting  Committee  of  Overseers, 
1873,  1874,  and  1875,  511. 

Haven's  letter  against  Dana,  505. 

Hayden,  Lewis,  defense  of,  on  charge  of  rescuing 
fugitive  slave,  506;  fugitive  slave  cases  and 
R.  H.  Dana,  Jr.,  511. 

Hayes,  Pres.  Rutherford  B.,  withdrawal  of  fed 
eral  troops  from  southern  states,  46;  Tilden 
campaign,  51. 

Higginson,  Thomas  W.,  "literary  families"  of 
Cambridge,  7;  early  friend,  10. 

Hillard,  George  S.,  early  friend,  10;  attacks 
Dana,  505-506. 

Hoar,  E.  Rockwood,  early  friend,  10;  Harvard 
Law  School  classmate,  13;  said  that  Dana's 
"Episcopalianism"  stood  in  his  way,  48;  ad 
dress  to  Republican  members  of  Mass,  legis 
lature  in  behalf  of,  1874,  511;  "subsoiling"  or 
prepared  candidates,  511;  successor  of  Sum- 
ner,  511. 

Hoar,  George  Frisbie,  early  friend,  10;  tells  of 
Dana's  turning  a  whole  convention,  by  his 
sole  eloquence,  to  Lincoln's  support,  48; 
tirades  against  George  William  Curtis,  52. 

Holmes,  John,  "  Uncle  Edmund"  resembles,  8; 
early  friend,  10. 

Holmes,  Oliver  Wendell,  early  friend,  10. 

Howe,  Mrs.  Julia  W'ard,  early  friend,  10. 

Howe,  Dr.  S.  G.,  early  friend,  10. 

International  law,  notes  to  Wheaton,  1866,  510; 
on  the  Monroe  Doctrine,  293-328;  Lowell 
Institute  lectures  on,  510;  Virginius  case  and 
protection  of  the  flag,  511;  proposed  changes 
in,  1875,  511. 

Introductory  Sketch,  1-63. 

Italy,  Unity  of,  pamphlet  on,  1871,  510. 

James,  Henry,  Sr.,  early  friend,  10. 

Japan,  letter  on,  1860,  508. 

Johnson,  Pres.  Andrew,  reconstruction  experi 
ment,  255-257,  263,  265-266,  271;  "bread  and 
butter "  policy  of,  Dana  resigns  on  account  of, 
459. 


INDEX 


517 


Judges  of  probate,  appointment  or  election  of, 
speech  on,  at  Mass.  Constl.  Conv.  1853,  507. 

Judiciary,  speech  on  appointment  and  tenure  of, 
at  Mass.  Constl.  Conv.  1853,  5-6,  78-116; 
importance  of  subject,  80-85;  appointment 
for  life  present  system,  no  need  and  no  de 
mand  for  change,  81—85,  113;  judges  to  be  as 
free,  impartial  and  independent  as  the  lot  of 
humanity  will  admit,  84;  history  of,  in  Eng 
land,  85-87;  trust  the  people?  wise  people 
put  themselves  under  "restraint,"  87-91,  101- 
102;  judiciary  more  important  in  a  republic 
than  in  a  monarchy,  91;  history  in  the  U.  S., 
92;  a  judiciary  dependent  on  elections,  93; 
laws  of  N.  Y.  and  Maryland,  93-95;  judges  in 
the  "political  mill,"  95-96;  the  tyranny  of  the 
majorities,  91-101,  103-107;  people  not  al 
ways  right,  105-107;  short  terms  by  re- 
appointment,  107-116. 

Juries  as  judges  of  the  law,  speech  against,  in 
Mass.  Constl.  Conv.  1853,  506. 

Jury,  trial  by,  not  allowed  in  fugitive  slave  cases, 
167,  171-174. 

Kalloch,  Rev.  J.  S.,  defense  of,  508. 
King,  Preston,  Buffalo  Conv.  of  1848, 152. 
Kinnaird,  Lord,  tribute  to  on  death  of,  1878,  512. 

LaFayette,  tour  in  U.  S.  1825,  excities  patriot 
ism,  11. 

Latawana,  The,  admiralty  liens  and  material- 
men,  1875,  511. 

Lawrence,  Abbott,  1792-1855,  silent  on  free  soil 
issues,  147. 

Lawrence,  William  Beach,  writes  in  London  Law 
Magazine  that  Prize  decision  recognized  right 
of  secession  to  southern  states,  277;  suit  of, 
against  Mr.  Dana,  as  to  Notes  on  Wheaton's 
International  Law,  after  long  delay,  ends  in 
Dana's  favor,  62. 

Leavitt,  Joshua,  at  Buffalo  Free  Soil  Conv. 
1848,  158-159. 

Legislature,  town  representation  in,  speech  on, 
in  Mass.  Constl.  Conv.  1853,  506. 

Legislature  of  Mass.,  article  on,  1868,  510. 

Letters  from  a  Father  to  a  Son,  1-2;  note  by  the 
"Son,"  429-477;  led  by  father's  love  and  es 
teem,  430-435;  the  whitest  soul,  435-436; 
friendship  with  son,  436-437;  no  coddling, 
437—438;  warning  against  aristocratic  ten 
dencies  in  U.  S.,  439;  example  in  religion,  441- 
447;  in  family,  and  romantic  love  for  his  wife, 
441-444;  tender  thoughtfulness,  444;  sense  of 
fun,  444;  conduct  as  to  aristocracy  and  "kid 
gloves,"  441-446;  sweet  disposition,  446; 
excuse  for  publishing  so  much  in  praise  of  son, 
447;  an  appeal  to  the  inward  vision,  447;  let 
ters:  —  from  Shakespeare's  house,  448;  to  a 
son  at  St.  Paul's  School,  448-470;  on  entering 
college,  470-472;  on  college  boat  races,  473, 
485;  on  journey  in  Europe,  485—501;  on  loss  of 
English  mission,  449-500. 

Lexington,  Centennial  Oration,  1875,  1,  511; 
and  Concord  data,  511. 

Liberal  party,  in  Free  Soil  Conv.  1848,  speech, 
150-153. 


Lincoln,  Pres.  Abraham,  his  idea  of  emancipa 
tion,  41;  Dana  defends,  43;  Dana  turns  Mass. 
Republican  State  Conv.  to  favor,  48;  offers 
Dana  a  portfolio,  53;  emancipation  by  pur 
chase,  40;  at  first  minimizes  Civil  War  for 
purposes  of  diplomacy,  240-273;  on  negro 
franchise,  243;  emancipation  proclamation, 
247-248;  speech  on,  1861,  508;  speech  on, 
before  meeting  of  N.  Y.  capitalists  in  1864, 
509;  speech  on  assassination  of,  in  1865,  509. 

Liquor  question,  speech  on  attitude  of  parties, 

1867,  510. 

Liquors,   intoxicating,   act  to  regulate,   report, 

1868,  510. 

Loan  of  state  credit,  speech  against,  in  Mass. 

Constl.  Conv.  1853,  503. 
Longfellow,  Henry  W.,  early  friend,  10. 
Loring,  Charles  G.,  honorable  conduct  of  law 

cases,  35-36. 
Loring,  Judge  E.  G.,  against  removal  of,  60;  U.  S. 

commissioner  in  Anthony  Burns  fugitive  slave 

case,  210,  233;  remarks  against  removal  of, 

1855,  507;  letter  on  final  removal  of,  1857, 

508. 
Loring,   Dr.  G.  B.,  a  candidate  for  governor, 

1875,  511. 
Lothrop,   Thornton   K.,    on   Prize   arguments, 

mistakes  ground  taken  by  Dana,  236-241. 
Lewisburg,  C.  B.,  capture  of,  by  N.  E.  colonists 

under  Pepperell,  355-356. 
Lowell,    James   Russell,    early   friend,    10;    on 

Tennyson's  manners,  27;  on  learning  to  speak 

French,  497. 
Lunt,  George,  U.  S.  district   attorney,  conduct 

in  trial  of  rescue  cases,  1851,  179,  185,  209; 

"sedulously  present"  in  Burns  fugitive  slave 

case,  211. 

McCall,  Samuel  W.,  secures  civil  service  reform 
plank  in  Natl.  Repub.  Conv.  1888,  52. 

McLean,  John,  candidate  in  the  Buffalo  Free 
Soil  Conv.  1848,  154. 

Mackenzie,  Commander,  court  martial  of,  in 
Somers  mutiny  case,  503. 

Manchester,  N.  H.,  speech  at,  on  reasonable 
conciliation  with  the  southern  states,  1861, 
508. 

Mandamus,  in  ecclesiastical  cases  in  America, 
507. 

Marshall,  Judge  John,  story  of,  that  excited 
mirth  of  Washington,  told  by  "Uncle  Ed 
mund,"  67-68. 

Mason,  Jeremiah,  compared  with  Rufus  Choate, 
290-292. 

Mason  and  Slidell,  capture  and  return  of,  Trent 
affair,  1861,  Dana's  views  on,  42-43,  508. 

Mass.  Constitutional  Convention  1853,  debates 
in,  5-6;  on  the  judiciary,  77-116.  (See  Judi 
ciary,  speech  on.) 

Mastiff,  the  ship,  burned  at  sea,  508. 

Mexico,  in  Monroe  Doctrine,  revolution  vs. 
Spain,  296;  French  intervention  in,  329-830, 
340-341.  (See  also  Monroe  Doctrine.) 

Middleton,  U.  S.  minister  to  Russia  —  Monroe 
Doct.,  297. 


518 


INDEX 


Militia,  speech  on,  in  Mass.  Constl.  Conv.  1853, 
506. 

Millspaugh,  lessee  of  fugitive  slave,  Anthony 
Burns,  226-230. 

Milton,  love  of,  26-27. 

Monroe  Doctrine,  note  on,  by  R.  H.  Dana  Jr.,  1, 
295-328;  brought  to  date  by  R.  H.  Dana  (3d), 
329-344;  consists  of  two  declarations,  —  first, 
against  new  colonization,  296-312,  327;  sec 
ond,  against  foreign  intervention  in  American 
affairs,  307-308;  conclusions,  326-327;  sub 
sequent  developments,  329-344;  French  inter 
vention  in  Mexico,  and  Maximilian,  329-330; 
Venezuelan  boundary  question  —  Great  Bri 
tain,  British  Guiana,  Venezuela  and  the  U.  S.; 
Pres.  Cleveland,  Sec.  Olney  and  Lord  Salis 
bury,  330-337;  map  showing  claims  of  Great 
Britain  and  Venezuela,  and  the  boundary  line 
decreed  by  the  court  of  arbitration,  336; 
Hayti,  —  claims  by  Germany  for  reparation 
and  apology  against,  337;  Nicaragua,  Pres. 
Zelaya,  U.  S.  attitude  on  the  Groce  and  Can 
non  cases,  1909,  337-338;  Venezuela,  collection 
of  monetary  claims  against,  by  Great  Britain, 
Germany  and  Italy,  by  force,  1902-1903,  338- 
339;  decision  of  the  Hague  Tribunal  in  the 
same,  338;  preference  in  favor  of  war  enforced 
claims,  and  its  effect  upon  the  Monroe  Doc 
trine,  338-339;  San  Domingo  protocol,  Pres. 
Roosevelt's  plan  of  assignment  to  the  U.  S.  of 
part  of  custom  duties  for  benefit  of  creditor 
nations,  339-341;  ratified  byU.  S.  Senate,  341; 
precedents  for,  340-341;  Hague  Peace  Con 
ference  of  1907,  regulation  of  use  of  force  to 
collect  debts  from  nations,  341-342;  general 
conclusions  from  history  since  1865,  342-343; 
authorities  on  the  Monroe  Doctrine,  343-344. 

Morris,  Robert,  defense  of,  in  fugitive  slave 
rescue  case,  506. 

Morse,  Samuel  F.  B.,  inventor  of  telegraphy, 
remarks  on  death  of,  510. 

Morton,  discoverer  of  ether,  tribute  to,  1868, 
510.  (See  also  Ether.) 

Morton,  Marcus,  Sr.  and  Jr..  in  Mass.  Constl. 
Conv.  1853,  78. 

Mount  Vernon,  visit  to,  in  1844,  504. 

Mystic  River  improvements,  505. 

Navy,  U.  S.,  speech  before  officers  and  sailors  of, 

1865,  510. 

Negro,  disqualifications  in  South  before  recon 
struction,  241-242,  248-250,  256,  267. 
Negro  equality  before  the  law,  Mr.  Dana  urged, 

but  not  social  or  race  equality,  242,  270-271. 
Negro  franchise,  on  educational  and  property 

qualifications,   5,  61,  234,   241-243,   249-252, 

264,  268-9. 
Negroes,  colored  citizens  of  Boston,  letter  to, 

on  Pres.  Grant,  1872,  511. 
'New  York,  speech  at  meeting  of  capitalists  of, 

1864,  509. 

Niphon's  crew,  507. 
Northern  states  not  good  judges  of  the  negro 

question  (?),  270. 
Norton,  Charles  Eliot,  8;  early  friend,  10. 


Old  laws  continued,  speech  at  Mass.  Constl. 
Conv.  1853,  507. 

Old  South  argument  1872,  511. 

Olney,  Richard,  Sec.  of  State,  in  Venezuelan 
boundary  case  (wh.  see),  330-337. 

Onderdank,  Bishop,  trial  of,  504. 

Orr,  James  Lawrence,  governor  of  S.  C.,  favored 
negro  franchise  on  educational  and  property 
qualifications,  243. 

Osprey,  case  of  collision  and  rules  at  sea,  under 
lying  principle  discovered  by  Dana,  4,  39— 
41. 

Otis,  Harrison  Gray,  early  friend,  10. 

Palfrey,  J.  G.,  early  friend,  10. 

Parker,  Francis  Edward,  discusses  philosophy 
with,  20;  commends  Dana's  courage,  63. 

Parks,  Boston  river,  1875,  46-47,  511;  public 
address  at  meeting  in  favor  of,  1876,  512. 

Peace,  permanent  and  honorable,  after  Civil 
War,  1865,  509. 

Peace,  San  Domingo  protocol,  339;  Hague  Con 
ference,  1907,  341-342. 

Pepperell,  Sir  William,  capture  of  Louisburg, 
355-356,  360. 

Personal  liberty  bill,  505. 

Phi  Beta  Kappa,  wit  and  humor  when  presiding 
officer  at,  58. 

Philadelphia  Convention  of  1848  described,  153. 

Phillips,  Stephen  C.,  at  Buffalo  Free  Soil  Conv., 
160. 

Phillips,  Wendell,  reply  to,  refusing  fee  in  Burns 
case,  507.  (See  also  210.) 

Pickman  and  Silsbee,  claimants,  argument, 
508. 

Pitt,  William,  described  in  English  Parliament 
by  "Uncle  Edmund,"  64-65. 

Plurality,  elections  by,  speech  on,  in  Mass. 
Constl.  Conv.  1853,  507. 

Politics,  American,  Points  in,  44-46,  512. 

Prescott,  state's  witness  in  Davis  rescue  case, 
confusion  of  testimony  of,  197-199. 

Prescott,  W.  H.,  early  friend,  10. 

President  of  the  U.  S.,  election  of,  44,  512;  ascer 
taining  vote  for,  512;  tenure  of  office  and  re- 
eligibility,  44-45,  512. 

Prize  Causes,  1,  4-5,  41,  235-241,  273-287;  note 
on,  273-277;  how  question  arose,  273-274;  a 
dilemma,  274;  war  a  process  of  coercion,  274; 
blockade  and  prize  necessary  part  of  coercion, 
274;  forcible  coercion  against  a  de  facto  nation 
equals  war,  with  all  war  powers,  even  if  the 
nation  exists  illegally,  274;  argument  one  of 
the  great  ones  before  the  U.  S.  Supreme  Court, 
274;  difficult  task  of  convincing  court,  274; 
Dana's  argument  based  on  a  large  war  against 
a  great  existing  power,  274-275;  turns  recogni 
tion  of  belligerency  by  foreign  nations  into 
acquiescence  of  blockade  and  prize,  274; 
Dana's  argument  lost,  except  as  a  tradition, 
275;  decision  of  the  court  explained  in  "Ene 
my's  Territory,"  275;  "Enemy's  territory"  a 
technical  phrase,  but  its  use  does  not  admit 
that  southern  states  had  a  right  of  secession, 
276,  and  passim  to  287;  relation  to  right  of 


INDEX 


519 


secession,  273-287;  Enemy's  territory,  1864, 
(wh.  see),  509. 

Probate.   (See  Judges  of  probate.) 

Proscription  of  R.  H.  Dana,  Jr.,  articles  favoring, 
505;  by  "son  of  a  merchant,"  506. 

Providence,  R.  I.,  Republican  meeting,  speech 
at,  1863,  509. 

Pultney,  Sir  William,  described  in  English  Par 
liament  by  "  Uncle  Edmund,"  • —  loses  his  tem 
per,  65. 

Qualifications,  of  voters,  speech  on,  in  Mass. 

Constl.  Conv.   1853,  507;  for  freedmen,  see 

Negro  franchise. 

Quincy,  Josiah,  remarks  on  death  of,  509. 
Quincys,  early  friends,  10. 

Rantoul,  Robert,  in  Mass.  Constl.  Conv.  1853, 78. 

Reasonable  conciliation  with  South,  1861,  508. 

Reconstruction  after  Civil  War,  1,  5,  43,  46,  60- 
61;  in  Grasp  of  War  speech  (wh.  see),  234-272, 
509;  Mr.  Dana  did  not  approve  of  extreme 
measures,  differed  from  Sumner  and  opposed 
"Carpet  Bag"  rule,  235. 

Reforms  in  American  politics,  44-46,  512. 

Repeal  of  the  usury  laws,  speech  on,  1, 44, 47,  53, 
117-144.  (See  Usury  Laws.) 

Republican,  convention  at  Worcester,  1855,  ad 
dress,  resolutions  and  speech  at,  507;  report  on 
same  to  citizens  of  Cambridge,  507;  meeting  at 
Cambridge,  1860,  speech  at,  508;  convention 
at  Worcester,  1862,  report  on,  509;  ratification 
meeting,  Providence,  R.  I.,  1863,  speech  at, 
609;  at  Cambridge,  1863,  speech  at,  509;  reso 
lutions  and  speech  at  state  conv.  at  Worcester, 
1868,  510;  demonstration  in  Boston,  speech, 
1868,  510;  ratification  meeting,  Faneuil  Hall, 
address  as  president  at,  1875,  511;  meeting  at 
Cambridge,  speech  at,  1876,  512;  at  Boston, 
1876,  speech  at,  512. 

Resumption  of  specie  payments,  512.  (See  also 
Butler,  Benj.  F.,  speeches  and  campaign 
against.) 

Rhetorical  training,  article  on,  1875,  511. 

Riley,  John  H.,  deputy  marshal,  rescue  cases, 
1851,  182,  195-196,  199,  207. 

Roosevelt,  Pres.  Theodore,  peaceful  arrange 
ment  to  secure  debts  of  delinquent  countries 
—  Monroe  Doctrine  —  San  Domingo  pro 
tocol,  338-341. 

Rush,  Richard,  minister  to  England,  connection 
with  Monroe  Doctrine,  297-298. 

Russia  and  the  Monroe  Doctrine,  296-299. 

Russian  fleet,  remarks  at  dinner  to,  509. 

Sailor,  first  impressions  of  a,  507. 

Salisbury,  Lord,  in  Venezuelan  boundary  case 
(wh.  see),  330-336. 

San  Domingo.     (See  Monroe  Doctrine.) 

Sandwich  Islands,  letter  on,1859-1860,  508. 

Saturday  Club,  one  of  the  first  members,  24. 

Seaman's  Friend,  book  by  Dana,  59,  503. 

Seamen,  address  on  behalf  of,  508;  widow  and 
orphans  society  for,  address  before,  509;  in 
the  church,  504;  petition  for  speedy  trial  of,  504. 


Secession  and  the  Prize  Causes,  in  "Enemy's 
Territory"  (wh.  see)  explained,  273-289. 

Seventeenth  of  June,  speech  at  Arlington,  1866, 
510. 

Seward,  William  H.,  Sec.  of  State,  at  first  mini 
mizes  Civil  War  in  diplomacy,  240-273;  Trent 
affair,  42-43;  stops  French  intervention  in 
Mexico,  239-330;  sets  a  precedent  for  the  sub 
sequent  San  Domingo  plan  of  Pres.  Roosevelt, 
340-341. 

Shadrach,  fugitive  slave,  defense  of  C.  G.  Davis, 
accused  of  assisting  in  rescue  of,  178,  209; 
Scott  case,  500. 

Shaw,  Chief  Justice,  on  burden  of  proof  in  Peter 
York  case,  39. 

Sheridan,  Gen.  Philip  H.,  in  charge  of  army  of 
observation,  hastens  retreat  of  French  from 
Mexico  in  1866,  64,  330. 

Sheridan,  R.  B.,  in  English  Parliament,  de 
scribed  by  "Uncle  Edmund,"  64. 

Sheriffs  subject  to  the  governor,  speech  in  Mass. 
Constl.  Conv.  1853,  507. 

Sims,  Thomas,  fugitive  slave,  505. 

Slavery.  (See  Fugitive  Slaves,  Negro  Franchise 
and  Reconstruction.) 

Slidell,  John,  return  of,  in  Trent  affair,  1861, 
42-43;  letter  on  same,  508;  social  exclusive- 
ness  and  political  democracy  of,  446. 

Somers  mutiny,  6,  503. 

Sparks,  Jared,  early  friend,  10. 

Spoils  system  in  American  politics.  (See  Civil 
Service  Reform.) 

Sprague,  Judge  Peleg,  follows  Dana's  argument 
in  settling  collision  law,  40-41;  tribute  to,  509. 

State  credit,  loan  of,  speech  in  Mass.  Constl. 
Conv.  1853,  506. 

Story,  Judge  Joseph,  professor  in  Harvard  Law 
School,  compliments  Dana's  argument  in  moot 
court  case,  1 3 ;  literary  anecdote  of ,  1 8 ;  reference 
to,  in  Burns  case,  231;  address  and  speech  at 
Story  Association,  506;  reminiscences  of,  506. 

Story,  W.  W.,  tells  of  wit  and  humor  of  Dana 
shortly  before  Dana's  death,  62. 

"Subsoiling"  or  voters  vs.  prepared  candidates, 
1874,  511. 

Sumner,  Charles,  early  friend,  10;  on  fugitive 
slave  law  a  test  for  federal  patronage  and  civil 
service  reform,  50;  Mass.  Constl.  Conv.,  78, 
103;  Mr.  Dana  differs  from  on  reconstruction, 
235;  speech  on  outrage  to,  507;  remarks  on 
death  of,  1874,  511;  on  successor  of,  to  the  U. 
S.  Senate,  511. 

Sumner,  George,  early  friend,  10. 

Suttle,  Col.  Charles  T.,  claimant  of  fugitive  slave 
Anthony  Burns,  214-233. 

Taney,    Chief   Justice   Roger   B.,    remarks   on 

death  of,  509. 
Taylor,  Gen.  Zachary,  nominated  by  Whigs  — 

funeral    of    Wilmot    Proviso,     145-148;     on 

Buffalo  Free  Soil  Conv.  1848,  151,  162. 
Telegraphy,  speech  on  death  of  Samuel  F.  B. 

Morse,  inventor  of,  1872,  511. 
Tennyson,  fondness  for  poems  of,  27-28;  dislike 

of  strangers,  27-28. 


520 


INDEX 


Thackeray,  views  on,  16-17. 

Thompson,  chief  counsel  for  Great  Britain  at 
Halifax  Fishery  Commission,  1877,  hopes  for 
permanent  settlement,  346;  excessive  award 
thwarts  that  hope,  352. 

Ticknor,  George,  early  friend,  10. 

Town  representation  in  legislature,  speech  in 
favor  of,  Mass.  Constl.  Conv.  1853,  506. 

Trent  affair,  Dana's  views  on  England's  demand 
for  return  of  Mason  and  Slidell,  42-43. 

Trescott,  Hon.  William  Henry,  references  to,  in 
Halifax  Fishery  argument,  354,  411. 

Two  Years  Before  the  Mast,  power  of  description 
in,  6;  after  return  from,  12;  clear  style  and  use 
of  short  words  in,  14;  a  book  intended  to  re 
dress  sailors'  wrongs,  59;  pluck  shown  in  voy 
age  round  the  Horn,  62;  editions  of,  503. 

United  States  navy,  speech  before  officers  and 
sailors  of,  510. 

Usury  laws,  speech  on,  illustrates  power  of  origi 
nal  thought  and  logical  arrangement,  5;  sound 
judgment  in  policy  regarding,  43-45;  unusual 
power  of  debate  in,  47;  one  of  the  great 
speeches  in  the  Mass.  Legis.,  53;  speech  in  full 
on,  117-144,  510;  philanthropic  and  Biblical 
origin  of,  118-119, 123-125;  attempts  to  regu 
late  prices  of  commodities,  especially  necessi 
ties  of  life,  119-120;  bounties,  120;  colonial 
system,  121;  protection,  122-123;  borrowers 
not  always  the  feeble,  123;  Aristotle  on,  124; 
Calvin  exposes  Aristotle's  fallacy,  124;  neces 
sity  for  capital  and  rent  paid  for  it,  125;  not 
"fixed"  but  "ascertained"  the  market  value 
of  money,  126;  market  value  varies  by 
changes  of  supply  and  demand,  126;  difference 
of  good  and  bad  securities,  127,  132;  can  you 
keep  down  rate?  128;  repealed  in  England, 
1850-1855,  129;  no  demand  to  be  re-instated 
there,  129-130;  Holland's  low  rates  with  no 
usury  laws,  130;  evasions  of,  131;  effect  to 
increase  rates  by  increasing  risk  when  money 
is  scarce,  132-133,  135;  borrower  may  sell 
property  at  ruinous  loss,  but  cannot  pay  above 
6%  for  money,  133-134;  times  of  panic,  5%  a 
month  may  be  cheapest  money  ever  borrowed, 
134-135;  increase  of  chance  of  panic  by,  135; 
no  sliding  scale  as  in  corn  laws,  135-136;  rate 
regularly  above  legal  rate  at  long  periods,  136; 
moral  aspect  of,  137-138;  if  borrower  enforced 
penalties,  could  not  show  face  again  on 
'change,  138-140;  all  economists  agree  in  con 
demning,  140;  borrower  often  powerful  and 
rich,  and  lender  the  combined  savings  of  the 
poor,  141-142;  diffusion  of  money  brings 
competition  which  favors  borrowers,  143-144. 

Van  Buren,  Pres.  Martin,  candidate  of  Buffalo 

Free  Soil  Conv.  1848,  149-163. 
Venezuelan  boundary  question,  1895,  330-337; 

forcible  collection  of  claims  against  1902-1903, 

338.     (See  Monroe  Doctrine.) 
Vinton,  Major,  sketch  of,  1847,  25,  504. 
Virginius,  case  of,  —  right  of  protection  of  flag, 

1874,  511. 


Voice  from  the  Main  Deck,  Introduction  to,  507. 
Vote,  ascertaining  the  presidential,  512. 
Voters,  qualifications  of,  speech  in  Mass.  Constl. 
Conv.  1853,  507.     (See  also  Negro  franchise.) 
Voyage  on  the  Grand  Canal  of  China,  1860,  512. 

Wallace,  Horace  Binney,  obit,  on,  1853,  506. 
War  powers  and  reconstruction,  5,  43,  234-246, 

243-272.     (See  also  "Grasp  of   War"  speech 

and  Reconstruction.) 

Washington,  D.  C.,  Treaty  of,  1871.     (See  Hali 
fax  Fishery  Commission.) 
Washington,  George,  Dana  reads  Lives  of,  11; 

gradual  abolition  of  slavery  favored  by,  60; 

sense  of  fun,  and  laughter  at  two  stories,  by 

"Uncle  Edmund,"  66-68;  Dana's  visit  to  Mt. 

Vernon,  504. 

Washington's  Birthday,  address  on,  1862,  508. 
Webster,  Daniel,  speeches  at  50th  anniversary  of 

Lexington  and  Concord  arouse  patriotism,  11; 

hidden  behind  dark  and  impenetrable  cloud, 

146;  character  in  Great  Gravitation  Meeting, 

a  parody,  167,  171-175,  290-292. 
Western  visitors,  speech  at  dinner  to,  1865,  509. 
Wheaton's  International  Law,  Dana's  note  on 

Monroe  Doctrine  (wh.  see),  295-328;  notes  to, 

in  general,  1866,  509. 
Wheatons,  the,  early  friends,  10. 
Whig  party  in  Mass,  abandons  free  soil,  145-148. 

(See  references  to,  in  defense  of  Davis,  178-209; 

in  Anthony  Burns  argument,  210,  233;  in  Free 

Soil  meeting,  149-163;   in  Great  Gravitation 

Meeting,  164,  177.) 

Whitcomb,  Charles  Thomas,  obit,  on,  1851,  506. 
Wilde,  Judge  Samuel  S.,  sketch  of,  25;  memoir 

of,  1882,  512;  sustains  Dana's  view  of  burden 

of  proof  in  minority  opinion,  now  the  law  of 

the  land,  39. 

Willard,  President  Sidney,  early  friend,  10. 
Wilmot  Proviso  abandoned  by  Whigs,  as  shown 

in  free  soil  speech  at  Boston,  1848,  147-148; 

speech  at  meeting  to  sustain,  505. 
Wilson,  Henry,  in  Mass.  Constl.  Conv.  1853,  78; 

on  judiciary  argument  in  same,  83-84,  93,  111. 
Winthrop,  Robert  C.,  voted  for,  in  1847,  145; 

appeal  to,  in  account  of  Buffalo  Free  Soil 

Conv.,  162. 
Winthrop  Square,  Boston,  meeting,  speech  at, 

1865,  509. 
Withdrawal  of  federal  troops  from  the  South 

advocated  in  1876,  45,  512. 
Woods,  Leonard,  early  friend,  10;  sketch  of,  25; 

article  on,  1880,  512. 
Worcester,  Mass.,  speech  at,  1850,  505;  address 

and   resolutions   and   speech   at,    1855,   507; 

report  to  citizens  of  Cambridge  on,  507.     (See 

also  Free  Soil  and  Republican.) 

York,  Peter,  in  argument  before  Supreme  Court 
in  the  case  of,  Dana  seeks  the  philosophy  of 
law,  3;  defense  from  extreme  penalty,  not 
from  punishment,  33;  settles  the  true  doctrine 
of  the  burden  of  proof,  though  against  the 
wording  of  the  text-books,  37-39.  (See  Wilde, 
Judge.) 


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